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AN ACT
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relating to the licensing, acquisition, regulation, and taxation of |
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manufactured housing; providing administrative and criminal |
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penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1201.003, Occupations Code, is amended |
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to read as follows: |
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Sec. 1201.003. DEFINITIONS. In this chapter: |
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(1) "Advertisement" means a commercial message that |
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promotes the sale, exchange, or lease-purchase of a manufactured |
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home and that is presented on radio, television, a public-address |
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system, or electronic media or appears in a newspaper, a magazine, a |
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flyer, a catalog, direct mail literature, an inside or outside sign |
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or window display, point-of-sale literature, a price tag, or other |
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printed material. The term does not include educational material |
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or material required by law. |
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(2) "Affiliate" means a person who is under common |
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control. |
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(3) "Alteration" means the replacement, addition, |
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modification, or removal of equipment in a new manufactured home |
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after sale by a manufacturer to a retailer but before sale and |
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installation by a retailer to a purchaser in a manner that may |
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affect the home's construction, fire safety, occupancy, or |
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plumbing, heating, or electrical system. The term includes the |
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modification of a manufactured home in a manner that may affect the |
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home's compliance with the appropriate standards but does not |
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include: |
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(A) the repair or replacement of a component or |
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appliance that requires plug-in to an electrical receptacle, if the |
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replaced item is of the same configuration and rating as the |
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replacement; or |
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(B) the addition of an appliance that requires |
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plug-in to an electrical receptacle and that was not provided with |
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the manufactured home by the manufacturer, if the rating of the |
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appliance does not exceed the rating of the receptacle to which the |
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appliance is connected. |
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(4) [(2-a)] "Attached" in reference to a manufactured |
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home means that the home has been: |
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(A) installed in compliance with the rules of the |
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department; and |
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(B) connected to a utility, including a utility |
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providing water, electric, natural gas, propane or butane gas, or |
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wastewater service. |
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(5) [(3)] "Board" means the Manufactured Housing |
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Board within the Texas Department of Housing and Community Affairs. |
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(6) [(4)] "Broker" means a person engaged by one or |
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more other persons to negotiate or offer to negotiate a bargain or |
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contract for the sale, exchange, or lease-purchase of a |
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manufactured home for which a certificate or other document of |
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title has been issued and is outstanding. The term does not include |
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a person who maintains a location for the display of manufactured |
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homes. |
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(7) [(5)] "Business use" means the use of a |
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manufactured home for a purpose other than as a permanent or |
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temporary dwelling. |
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(8) [(6)] "Consumer" means a person, other than a |
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person licensed under this chapter, who seeks to acquire or |
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acquires by purchase, exchange, or lease-purchase a manufactured |
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home. |
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(9) "Control" means, with respect to another person, |
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the possession of the power, directly or indirectly, to vote an |
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interest of 25 percent or more. |
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(10) [(7)] "Department" means the Texas Department of |
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Housing and Community Affairs operating through its manufactured |
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housing division. |
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(11) [(8)] "Director" means the executive director of |
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the manufactured housing division of the Texas Department of |
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Housing and Community Affairs. |
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(12) [(9)] "HUD-code manufactured home": |
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(A) means a structure: |
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(i) constructed on or after June 15, 1976, |
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according to the rules of the United States Department of Housing |
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and Urban Development; |
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(ii) built on a permanent chassis; |
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(iii) designed for use as a dwelling with or |
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without a permanent foundation when the structure is connected to |
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the required utilities; |
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(iv) transportable in one or more sections; |
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and |
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(v) in the traveling mode, at least eight |
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body feet in width or at least 40 body feet in length or, when |
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erected on site, at least 320 square feet; |
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(B) includes the plumbing, heating, air |
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conditioning, and electrical systems of the home; and |
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(C) does not include a recreational vehicle as |
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defined by 24 C.F.R. Section 3282.8(g). |
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(13) [(10)] "Installation" means the temporary or |
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permanent construction of the foundation system and the placement |
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of a manufactured home or manufactured home component on the |
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foundation. The term includes supporting, blocking, leveling, |
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securing, anchoring, and properly connecting multiple or |
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expandable sections or components and making minor adjustments. |
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(14) [(11)] "Installer" means a person, including a |
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retailer or manufacturer, who contracts to perform or performs an |
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installation function on manufactured housing. |
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(15) [(12)] "Label" means a device or insignia that |
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is: |
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(A) issued by the director to indicate compliance |
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with the standards, rules, and regulations established by the |
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United States Department of Housing and Urban Development; and |
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(B) permanently attached to each transportable |
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section of each HUD-code manufactured home constructed after June |
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15, 1976, for sale to a consumer. |
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(16) [(13)] "Lease-purchase" means entering into a |
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lease contract for a manufactured home, in which the lessor retains |
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title, containing a provision or, in another agreement, conferring |
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on the lessee an option to purchase a manufactured home. |
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(17) [(14)] "License holder" or "licensee" means a |
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person who holds a department-issued license as a manufacturer, |
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retailer, broker, rebuilder, salesperson, or installer. |
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(18) [(15)] "Manufactured home" or "manufactured |
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housing" means a HUD-code manufactured home or a mobile home. |
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(19) [(16)] "Manufacturer" means a person who |
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constructs or assembles manufactured housing for sale, exchange, or |
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lease-purchase in this state. |
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(20) [(17)] "Mobile home": |
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(A) means a structure: |
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(i) constructed before June 15, 1976; |
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(ii) built on a permanent chassis; |
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(iii) designed for use as a dwelling with or |
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without a permanent foundation when the structure is connected to |
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the required utilities; |
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(iv) transportable in one or more sections; |
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and |
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(v) in the traveling mode, at least eight |
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body feet in width or at least 40 body feet in length or, when |
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erected on site, at least 320 square feet; and |
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(B) includes the plumbing, heating, air |
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conditioning, and electrical systems of the home. |
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(21) "New manufactured home" means a manufactured home |
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that is not a used manufactured home, regardless of its age. |
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(22) [(18)] "Person" means an individual or a |
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partnership, company, corporation, association, or other group, |
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however organized. |
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(23) "Related person" means a person who directly or |
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indirectly participates in management or policy decisions. |
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(24) [(19)] "Retailer" means a person who: |
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(A) is engaged in the business of buying for |
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resale, selling, or exchanging manufactured homes or offering |
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manufactured homes for sale, exchange, or lease-purchase to |
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consumers, including a person who maintains a location for the |
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display of manufactured homes; and |
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(B) sells, exchanges, or lease-purchases at |
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least two manufactured homes to consumers in a 12-month period. |
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(25) "Rules" means the rules of the department. |
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(26) [(20)] "Salesperson" means a person who, as an |
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employee or agent of a retailer or broker, sells or lease-purchases |
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or offers to sell or lease-purchase manufactured housing to a |
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consumer [for any form of compensation]. |
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(27) [(21)] "Salvaged manufactured home" means a |
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manufactured home determined to be salvaged under Section 1201.461. |
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(28) [(22)] "Seal" means a device or insignia issued |
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by the director that, for title purposes, is to be attached to a |
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used manufactured home as required by the director. |
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(29) [(23)] "Standards code" means the Texas |
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Manufactured Housing Standards Code. |
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(30) [(23-a)] "Statement of ownership and location" |
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means a statement issued by the department and setting forth: |
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(A) the ownership and location of a manufactured |
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home [that has been sold at a retail sale or installed] in this |
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state as provided by Section 1201.205; and |
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(B) other information required by this chapter. |
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(31) [(24)] "Trust fund" means the manufactured |
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homeowners' recovery trust fund. |
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(32) "Used manufactured home" means a manufactured |
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home which has been occupied for any use or for which a statement of |
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ownership and location has been issued. The term does not include: |
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(A) a manufactured home that was used as a sales |
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model at a licensed retail location; or |
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(B) a manufactured home that: |
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(i) was sold as a new manufactured home and |
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installed but never occupied; |
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(ii) had a statement of ownership and |
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location; and |
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(iii) was taken back from the consumer or |
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transferee because of a first payment default or agreement to |
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rescind or unwind the transaction. |
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SECTION 2. Section 1201.008, Occupations Code, is amended |
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by adding Subsections (e) and (f) to read as follows: |
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(e) Notwithstanding any zoning or other law, in the event |
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that a manufactured home occupies a lot in a municipality, the owner |
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of the manufactured home may remove the manufactured home from its |
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location and place another manufactured home on the same property, |
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provided that the replacement is a newer manufactured home and is at |
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least as large in living space as the prior manufactured home. |
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(f) An owner's ability to replace the home as a result of a |
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fire or natural disaster cannot be restricted. Other than in the |
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case of a fire or natural disaster, a general-rule or home-rule |
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municipality by an ordinance or charter may limit the ability of the |
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owner to replace his home to a single replacement. |
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SECTION 3. Section 1201.053(a), Occupations Code, is |
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amended to read as follows: |
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(a) The board [director] shall adopt rules[, issue orders,] |
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and otherwise act as necessary to: |
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(1) comply with the National Manufactured Housing |
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Construction and Safety Standards Act of 1974 (42 U.S.C. Section |
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5401 et seq.), including adopting and enforcing rules reasonably |
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required to implement the notification and correction procedures |
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provided by 42 U.S.C. Section 5414; and |
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(2) provide for the effective enforcement of all |
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HUD-code manufactured housing construction and safety standards in |
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order to have the state plan authorized by the National |
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Manufactured Housing Construction and Safety Standards Act of 1974 |
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(42 U.S.C. Section 5401 et seq.) approved by the secretary of |
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housing and urban development. |
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SECTION 4. Section 1201.054, Occupations Code, is amended |
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to read as follows: |
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Sec. 1201.054. PROCEDURE FOR ADOPTING RULES. (a) Rules |
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must be adopted in accordance with Chapter 2001, Government Code, |
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and with this section. |
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(b) If requested, the board shall, after at least 10 days' |
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notice, hold a hearing on any rule that it proposes to adopt, other |
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than a rule that is to be adopted under emergency rulemaking, in |
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which case only the requirements of Chapter 2001, Government Code, |
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shall apply [A proposed rule must be published in the Texas Register
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before the 30th day preceding the date of a public hearing set to
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consider the testimony of interested persons. Notice of the time
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and place of the public hearing must be published in the Texas
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Register before the 30th day preceding the date of the hearing]. |
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(c) [A rule as finally adopted must be published in the
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Texas Register and state the rule's effective date.
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[(d)] A rule takes effect on the 30th day after the date of |
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publication of notice that the rule has been adopted, except that a |
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rule relating to installation standards may not take effect earlier |
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[later] than the 60th day after the date of publication of notice |
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unless the board has determined that an earlier effective date is |
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required to meet an emergency and the standard was adopted under the |
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emergency rulemaking provisions of Chapter 2001, Government Code. |
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SECTION 5. Section 1201.055, Occupations Code, is amended |
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by adding Subsection (c-1) to read as follows: |
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(c-1) The department may permit the use of any device or |
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procedure that has been reviewed and approved by a licensed |
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engineer provided that such use or procedure complies with any |
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instructions, conditions, or other requirements specified by that |
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engineer. |
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SECTION 6. Section 1201.058, Occupations Code, is amended |
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to read as follows: |
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Sec. 1201.058. AMOUNT OF FEES. (a) The board shall |
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establish reasonable fees for all matters under this chapter |
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providing for fees. If the department's rules provide an option to |
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file a document electronically, the department may charge a |
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discounted fee for the electronic filing. |
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(b) Ten dollars of the fee for each purchase, exchange, or |
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lease-purchase of a manufactured home shall be deposited to the |
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credit of the trust fund and used for the protection programs |
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described by Subchapter I. |
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(c) All fees established by this chapter or the rules are |
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deemed to be earned and not subject to refund after receipt by the |
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department. |
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(d) Notwithstanding Subsection (c), the director may, in |
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limited and appropriate circumstances and in accordance with rules |
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adopted by the board, approve the refund of fees [the fees imposed
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under Sections 1201.055-1201.057 in amounts that are reasonable and
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necessary to cover the cost of administering this chapter]. |
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SECTION 7. Section 1201.101, Occupations Code, is amended |
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by amending Subsections (d), (f), and (g) and adding Subsection |
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(f-1) to read as follows: |
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(d) A person may not act as an installer [perform an
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installation function on manufactured housing] in this state unless |
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the person holds an installer's license. |
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(f) A person may not act as a salesperson of manufactured |
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housing unless the person holds a salesperson's license. A |
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retailer or broker may not employ or otherwise use the services of a |
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salesperson who is not licensed. A licensed salesperson may not |
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participate in a sale of a manufactured home unless the sale is |
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through the retailer or broker who sponsored the salesperson's |
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application as required by Section 1201.103(d). |
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(f-1) A retailer may be licensed to operate at a principal |
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location and one or more branch locations under a single license; |
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provided, however, that a separate application must be made for |
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each branch, and each branch must be separately bonded. |
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(g) A person may not make an announcement concerning the |
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sale, exchange, or lease-purchase of, or offer to sell, exchange, |
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or lease-purchase, a manufactured home to a consumer in this state |
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through an advertisement unless the person holds a manufacturer's, |
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retailer's, or broker's license. This subsection does not apply to: |
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(1) a person exempt from licensing [to whom a
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statement of ownership and location has been issued showing the
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person to be the owner of the home if the person does not offer to
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sell, exchange, or lease-purchase two or more manufactured homes in
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a 12-month period]; or |
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(2) an advertisement concerning real property on [to] |
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which there is a manufactured home that has been converted to real |
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property in accordance with Section 1201.2055 [permanently
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attached]. |
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SECTION 8. Sections 1201.102(a), (b), and (c), Occupations |
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Code, are amended to read as follows: |
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(a) A licensed installer may employ unlicensed persons to |
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assist in performing installation functions provided that the |
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licensed installer maintains a list of the persons so employed. The |
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director may issue an order to prohibit a person who is not licensed |
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as an installer from performing installation functions under the |
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oversight of a licensed installer [An employee who acts as an agent
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of a license holder is covered by the holder's license and is not
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required to hold an individual license]. |
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(b) A licensee may engage another person who is not licensed |
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under this chapter but possesses another license issued by the |
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State of Texas to provide goods and services subject to that other |
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license. Without limiting the generality of the foregoing, this |
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includes engaging others to install, connect, or otherwise work on |
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air conditioning, plumbing, and electrical systems [Except as
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provided by Section 1201.510, an independent contractor or business
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entity may not operate under the license of another business entity
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except as an agent or subcontractor of a licensed installer who is
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responsible for an installation function performed by the agent or
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subcontractor]. |
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(c) An individual who [In the case of a sole proprietorship,
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partnership, or corporation that] holds a retailer's license or |
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broker's license or who is a related person of such a licensee[, an
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owner, partner, or officer of that entity] is not required to apply |
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for a salesperson's license [if that owner, partner, or officer is
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properly listed in the retailer's or broker's license application]. |
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SECTION 9. Section 1201.103, Occupations Code, is amended |
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by amending Subsections (a) and (d) and adding Subsection (a-1) to |
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read as follows: |
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(a) An applicant for a license as a manufacturer, retailer, |
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broker, rebuilder, or installer must file with the director a |
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license application containing: |
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(1) the legal name, address, and telephone number of |
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the applicant and each person who will be a related person at the |
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time the requested license is issued; |
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(2) all [the] trade names, and the names of all other |
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business organizations, under [name by] which the applicant does |
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business subject to this chapter [and, if incorporated], the name |
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of each such business organization registered with the secretary of |
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state, and the address of such [the] business organization; [and] |
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(3) the dates on which the applicant became the owner |
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and operator of the business; and |
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(4) the location to which the license will apply. |
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(a-1) All required records of a licensee under Subsection |
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(a) are to be maintained at the licensee's principal office or such |
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other location within this state as the licensee may designate. |
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(d) An applicant for a salesperson's license must: |
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(1) file with the director an application that |
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provides any information the director considers necessary and that |
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is sponsored by a currently licensed[, bonded] retailer or broker; |
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and |
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(2) pay the required fee. |
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SECTION 10. Sections 1201.104 and 1201.105, Occupations |
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Code, are amended to read as follows: |
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Sec. 1201.104. QUALIFICATIONS FOR LICENSE. (a) Except as |
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provided by Subsection (e), as a requirement [prerequisite] for a |
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manufacturer's, retailer's, broker's, installer's, salvage |
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rebuilder's, or salesperson's license, a person who was not |
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licensed or registered with the department or a predecessor agency |
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on September 1, 1987, must, not more than 12 months before applying |
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for the person's first license under this chapter, attend and |
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successfully complete 20 hours of instruction in the law, including |
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instruction in consumer protection regulations. If the applicant |
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is not an individual, the applicant must have at least one related |
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person who meets this requirement [The director may not issue a
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license to that person until the course of instruction is
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completed]. |
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(b) Except in the case of an applicant for a salesperson's |
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license, successful completion of the course of instruction is a |
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prerequisite to obtaining the license. |
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(c) An applicant for a salesperson's license may apply for a |
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license without having completed the course of instruction provided |
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that the person successfully completes the next scheduled course |
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offered after the date of the person's licensure. If the person |
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fails to complete such course successfully and in a timely manner, |
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the person's license is automatically suspended until the person |
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successfully completes the course. |
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(d) The course of instruction must be offered at least |
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quarterly. |
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(e) The board shall adopt rules relating to course content |
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and approval. Classes must be live. Online or other electronic |
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classes are not permitted. |
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(f) An applicant for an initial installer's license shall |
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receive a license on a probationary basis. The person's |
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probationary status shall remain in effect until such time as a |
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sufficient number of installations completed by the person have |
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been inspected by the department and found not to have any |
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identified material violations of the department's rules. The |
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board, with the advice of the advisory committee to be established |
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under Section 1201.251, shall adopt rules to establish what |
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constitutes a sufficient number of installations under this |
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subsection. |
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(g) [(c) Instead of the course of instruction:
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[(1)
a manufacturer may request that an authorized
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representative of the department present a one-day, in-plant
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training program; or
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[(2)
the director may approve a training program for a
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license applicant that is conducted by a nonprofit educational
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institution or foundation.
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[(d)
A manufacturer shall reimburse the department for the
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actual cost of a program presented under Subsection (c)(1).
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[(e)] Subsection (a) does not apply to a license holder [or
|
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registration holder] who applies: |
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(1) for a license for an additional business location; |
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or |
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(2) to renew or reinstate a license[; or
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[(3) for a salesperson's license]. |
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(h) [(f)] An examination must [may not] be a requirement of |
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successful completion of any initial required course of instruction |
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under this section [made a prerequisite of licensing]. |
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Sec. 1201.105. SECURITY REQUIRED. (a) The department may |
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not issue or renew a license unless a bond or other security in a |
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form prescribed by the director is filed with the department as |
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provided by this subchapter. The bond or other security is payable |
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to the trust fund. |
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(b) If a bond is filed, the bond must be issued by a company |
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authorized to do business in this state and must conform to |
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applicable provisions of the Insurance Code. If other security is |
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filed, that security must be maintained in or by a federally insured |
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depository [banking] institution located in this state. |
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(c) If the department experiences significant problems in |
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obtaining timely reimbursements from a surety or the surety has |
|
experienced a deterioration in its financial condition, the board |
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may direct the director to stop accepting bonds issued by the |
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surety. |
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SECTION 11. Section 1201.106, Occupations Code, is amended |
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by amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) An applicant for a license or a license holder shall |
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file a bond or other security under Section 1201.105 for the |
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issuance or renewal of a license in the following amount: |
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(1) $100,000 for a manufacturer; |
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(2) $50,000 for a retailer's principal location |
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[retailer]; |
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(3) $50,000 for each retailer's branch location; |
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(4) $50,000 [$30,000] for a rebuilder; |
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(5) [(4)] $50,000 for a broker; or |
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(6) $25,000 [(5) $10,000] for an installer. |
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(a-1) Notwithstanding the provisions of Subsection (a), the |
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director may require additional security for the licensing, |
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renewal, or relicensing of a person who, either directly, as a |
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related person, or through a related person, has been the subject of |
|
a license revocation, has caused the trust fund to incur |
|
unreimbursed costs or liabilities in excess of available surety |
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bond coverage, or has failed to pay an administrative penalty that |
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has been assessed by final order. |
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SECTION 12. Section 1201.108, Occupations Code, is amended |
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to read as follows: |
|
Sec. 1201.108. SECURITY: CHANGE IN OWNERSHIP OR |
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LOCATION. (a) A new bond is not required for a change in: |
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(1) ownership of a licensee or a business entity under |
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which [corporation that is] a license holder conducts business; or |
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(2) location. |
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(b) A licensee shall notify the department of a change |
|
described by Subsection (a) not later than the 10th day before the |
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date the change occurs. |
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(c) After a change described by Subsection (a), the licensee |
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shall provide to the department a proper endorsement to the |
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original bond showing that the bond continues to apply to the |
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license without interruption [The director may require a proper
|
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endorsement of the original bond]. |
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SECTION 13. Sections 1201.113(a), (b), and (c), Occupations |
|
Code, are amended to read as follows: |
|
(a) The board shall approve [recognize, prepare,] or |
|
administer [certification and] continuing education programs for |
|
licensees [salespersons regulated] under this chapter. A |
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continuing education program must be at least eight hours long and |
|
must include the current rules of the department and such other |
|
matters as the board may deem relevant. |
|
(b) Attendance at an approved or administered continuing |
|
education course described by Subsection (a) is a prerequisite to |
|
renewal of a license [A person who holds a salesperson's license
|
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must participate in certification and continuing education
|
|
programs as provided by Subsection (e)]. |
|
(c) No test shall be given in relation to any continuing |
|
education program [To prepare or administer a certification or
|
|
continuing education program under this section, the board may
|
|
contract with:
|
|
[(1)
a private, nonprofit organization that qualifies
|
|
for an exemption from federal income taxation under Section 501(a),
|
|
Internal Revenue Code of 1986, by being listed as an exempt
|
|
organization under Section 501(c)(3) of that code; or
|
|
[(2) an educational institution]. |
|
SECTION 14. Section 1201.114, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.114. LICENSE EXPIRATION; PROBATIONARY |
|
LICENSE. (a) Any license under this chapter other than a |
|
probationary [A manufacturer's, retailer's, broker's, or
|
|
installer's] license is valid for [one year. A salesperson's
|
|
license is valid for] two years. A license may be renewed as |
|
provided by the director. A person whose license has been suspended |
|
or revoked or whose license has expired may not engage in activities |
|
that require a license until the license has been reinstated or |
|
renewed. |
|
(b) If the director determines that a licensed salesperson |
|
or installer should receive a probationary license, the director |
|
may issue a probationary license on such terms and for such period |
|
as are deemed reasonable. The issuance of a license on a |
|
probationary basis, any one or more of the specific terms of the |
|
probation, or the period of probation may be appealed before the |
|
31st day after issuance of the probationary license by written |
|
notice to the director. If appeal is made, the director shall set |
|
the matter for a hearing before the State Office of Administrative |
|
Hearings, and all administrative proceedings relating to the |
|
issuance of the probationary license shall be deemed to be a |
|
contested case under Chapter 2001, Government Code. If no appeal is |
|
made, the probationary license shall be issued and shall remain in |
|
effect in accordance with the terms specified [The board by rule may
|
|
adopt a system under which licenses expire on various dates during
|
|
the year. For the year in which the license expiration date is
|
|
changed, the department shall prorate license fees on a monthly
|
|
basis so that each license holder pays only that portion of the
|
|
license fee that is allocable to the number of months during which
|
|
the license is valid. On renewal of the license on the new
|
|
expiration date, the total license renewal fee is payable]. |
|
SECTION 15. Subchapter C, Chapter 1201, Occupations Code, |
|
is amended by adding Section 1201.118 to read as follows: |
|
Sec. 1201.118. RULES RELATING TO CERTAIN PERSONS. The |
|
board shall adopt rules providing for additional review and |
|
scrutiny of any application for an initial or renewal license that |
|
involves a person who has previously: |
|
(1) been found in a final order to have participated in |
|
one or more violations of this chapter that served as grounds for |
|
the suspension or revocation of a license; |
|
(2) been found to have engaged in activity subject to |
|
this chapter without possessing the required license; |
|
(3) caused the trust fund to incur unreimbursed |
|
payments or claims; or |
|
(4) failed to abide by the terms of a final order, |
|
including the payment of any assessed administrative penalties. |
|
SECTION 16. Section 1201.1505, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.1505. DEPOSIT ON SPECIALLY ORDERED MANUFACTURED |
|
HOMES. A retailer may require a [an earnest money] deposit on a |
|
specially ordered manufactured home [only if:
|
|
[(1)
an earnest money contract has been signed by all
|
|
parties;
|
|
[(2)
if applicable, the original binding loan
|
|
commitment letter issued by the lender is delivered to the
|
|
consumer; and
|
|
[(3)
the consumer has not rescinded the contract under
|
|
Section 1201.1521]. |
|
SECTION 17. The heading to Section 1201.151, Occupations |
|
Code, is amended to read as follows: |
|
Sec. 1201.151. REFUNDS [REFUND OF DEPOSIT]. |
|
SECTION 18. Section 1201.151, Occupations Code, is amended |
|
by amending Subsection (a) and adding Subsection (e) to read as |
|
follows: |
|
(a) Except as otherwise provided by this section, a |
|
retailer[, salesperson, or agent of the retailer] must refund a |
|
consumer's deposit not later than the 15th day after the date that a |
|
written request for the refund is received from the consumer. |
|
(e) A deposit becomes a down payment upon execution of a |
|
binding written agreement. Thereafter, if the consumer exercises a |
|
right of rescission, the retailer shall, not later than the 15th day |
|
after the date of the rescission, refund to the consumer all money |
|
and other consideration received from the consumer, without offset |
|
or deduction. |
|
SECTION 19. Section 1201.1521, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.1521. RESCISSION OF CONTRACT FOR SALE, EXCHANGE, |
|
OR LEASE-PURCHASE OF HOME. (a) A person who acquires a |
|
manufactured home from or through a licensee by purchase, exchange, |
|
or lease-purchase may, not later than the third day after the date |
|
the applicable contract is signed, rescind the contract without |
|
penalty or charge. |
|
(b) Subject to rules adopted by the board, a consumer may |
|
waive a right of rescission in the event of a bona fide emergency. |
|
Such rules shall, to the extent practical, be modeled on the federal |
|
rules for the waiver of a right of rescission under 12 C.F.R. Part |
|
226. |
|
SECTION 20. Section 1201.158, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.158. SALESPERSON. A licensed salesperson may |
|
work only for the salesperson's sponsoring [for more than one] |
|
retailer or broker [or at more than one sales location]. |
|
SECTION 21. Section 1201.159, Occupations Code, is amended |
|
by amending Subsection (a) and adding Subsections (c) and (d) to |
|
read as follows: |
|
(a) Except as provided by Section 1201.456, a [A] broker |
|
shall ensure that the seller gives the buyer the applicable |
|
disclosures and warranties that the buyer would have received if |
|
the buyer had purchased the manufactured home through a licensed |
|
retailer. |
|
(c) A broker shall provide any person who engages the |
|
broker's services with a written disclosure of which interests in |
|
the transaction, if any, the broker represents. |
|
(d) If the seller is required to possess a license by this |
|
chapter, a broker may assist in the sale of a manufactured home only |
|
if that seller has a current license. |
|
SECTION 22. Section 1201.161, Occupations Code, is amended |
|
by amending Subsections (a) and (d) and adding Subsection (e) to |
|
read as follows: |
|
(a) Notwithstanding any other statute or rule or ordinance, |
|
a licensed retailer or licensed installer is not required to obtain |
|
a permit, certificate, or license or pay a fee to transport |
|
manufactured housing to the place of installation except as |
|
required by[:
|
|
[(1) the department; or
|
|
[(2)] the Texas Department of Transportation under |
|
Subchapter E, Chapter 623, Transportation Code. |
|
(d) Unless the information provided for in Subsection (c) is |
|
provided electronically, the [The] department shall pay the |
|
reasonable cost of providing the copies or the list and information |
|
under Subsection (c). |
|
(e) The copies and lists to be provided under this section |
|
may be provided electronically. |
|
SECTION 23. Section 1201.162, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.162. DISCLOSURE BY RETAILER AND LENDER. (a) |
|
Before the completion of a credit application or more than one day |
|
before entering into any agreement for a sale, exchange, or the |
|
exercise of the lease purchase option that will not be financed, the |
|
retailer [or agent] must provide to the consumer a written |
|
disclosure in the form promulgated by the board. The disclosure |
|
shall be in at least 12-point type and must address matters of |
|
concern relating to costs and obligations that may be associated |
|
with home ownership, matters to be considered in making financing |
|
decisions, related costs that may arise when purchasing a |
|
manufactured home, and such other matters as the board may deem |
|
appropriate to promote informed purchase, financing, and related |
|
decisions regarding the acquisition and ownership of a manufactured |
|
home. The form shall also conspicuously disclose the consumer's |
|
right of rescission. |
|
(b) [the following statement that is printed in at least
|
|
12-point type and not attached to or combined with any other written
|
|
material:
|
|
["When buying a manufactured home, there are a number of
|
|
important considerations, including price, quality of
|
|
construction, features, floor plan, and financing alternatives.
|
|
["The United States Department of Housing and Urban
|
|
Development (HUD) helps protect consumers through regulation and
|
|
enforcement of HUD design and construction standards for
|
|
manufactured homes. Manufactured homes that meet HUD standards are
|
|
known as 'HUD-code manufactured homes.' The Texas Department of
|
|
Housing and Community Affairs regulates Texas manufacturers,
|
|
retailers, brokers, salespersons, installers, and rebuilders of
|
|
manufactured homes.
|
|
["If you plan to place a manufactured home on land that you
|
|
own or will buy, you should consider items such as:
|
|
["ZONING AND RESTRICTIVE COVENANTS. Municipalities or
|
|
subdivisions may restrict placement of manufactured homes on
|
|
certain lots, may prohibit the placement of homes within a certain
|
|
distance from property lines, may require that homes be a certain
|
|
size, and may impose certain construction requirements. You may
|
|
need to obtain building permits and homeowner association approval
|
|
before you place a manufactured home on a certain lot. Contact the
|
|
local municipality, county, and subdivision manager to find out if
|
|
you can place the manufactured home of your choice on a certain lot.
|
|
["WATER. Be sure that your lot has access to water. If you
|
|
must drill a well, contact several drillers for bids. If water is
|
|
available through a municipality, utility district, water
|
|
district, or cooperative, you should inquire about the rates you
|
|
will have to pay and the costs necessary to join the water system.
|
|
["SEWER. If your lot is not serviced by a municipal sewer
|
|
system or utility district, you will have to install an on-site
|
|
sewer facility (commonly known as a septic system). There are a
|
|
number of concerns or restrictions that will determine if your lot
|
|
is adequate to support an on-site sewer facility. Check with the
|
|
local county or a licensed private installer to determine the
|
|
requirements that apply to your lot and the cost to install such a
|
|
system.
|
|
["HOMEOWNER ASSOCIATION FEES. Many subdivisions have
|
|
mandatory assessments and fees that lot owners must pay. Check with
|
|
the manager of the subdivision in which your lot is located to
|
|
determine if any fees apply to your lot.
|
|
["TAXES. Your home will be appraised and subject to ad
|
|
valorem taxes as are other single-family residential structures.
|
|
These taxes must be escrowed with your monthly payment, except that
|
|
your lender is not obligated to impose an escrow requirement in a
|
|
real property transaction involving a manufactured home if the
|
|
lender is a federally insured financial institution and does not
|
|
otherwise require the escrow of taxes, insurance premiums, fees, or
|
|
other charges in connection with loans secured by residential real
|
|
property. On closing, you will be notified of all provisions
|
|
pertaining to federal truth in lending disclosures.
|
|
["INSURANCE. Your lender may require you to obtain insurance
|
|
that meets lender requirements and protects your investment. You
|
|
should request quotes from the agent of your choice to obtain the
|
|
insurance.
|
|
["TYPES OF MORTGAGES AVAILABLE. The acquisition of a
|
|
manufactured home may be financed by a real estate mortgage or a
|
|
chattel mortgage. A real estate mortgage may have a lower interest
|
|
rate than a chattel mortgage.
|
|
["RIGHT OF RESCISSION. If you acquire a manufactured home,
|
|
by purchase, exchange, or lease-purchase, you may, not later than
|
|
the third day after the date the applicable contract is signed,
|
|
rescind the contract without penalty or charge."
|
|
[(d)] A federally insured financial institution or lender |
|
approved or authorized by the United States Department of Housing |
|
and Urban Development as a mortgagee with direct endorsement |
|
underwriting authority that fully complies with federal Truth in |
|
Lending disclosures concerning the terms of a manufactured housing |
|
transaction is exempt from the disclosure provisions of this |
|
section. |
|
(c) The right of rescission described in Subsection (a) |
|
shall apply only to the sale transaction between the retailer and |
|
the consumer. |
|
[(e)] Failure by the retailer to comply with the disclosure |
|
provisions of this section does not affect the validity of a |
|
subsequent conveyance or transfer of title of a manufactured home |
|
or otherwise impair a title or lien position of a person other than |
|
the retailer. The consumer shall continue to have the right of |
|
rescission with regard to the retailer until the end of the third |
|
day after the retailer delivers a copy of the disclosure required by |
|
Subsection (a). The consumer's execution of a signed receipt of a |
|
copy of the disclosure required by Subsection (a) shall constitute |
|
conclusive proof of the delivery of the disclosure. If the consumer |
|
grants a person other than the retailer a lien on the manufactured |
|
home, the right of rescission shall immediately cease on the filing |
|
of the lien with the department. |
|
SECTION 24. Section 1201.164, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.164. ADVANCE COPY OF [INSTALLMENT] CONTRACT AND |
|
DISCLOSURE STATEMENTS; OFFER BY RETAILER. (a) In a transaction |
|
that is to be financed and that will not be subject to the federal |
|
Real Estate Settlement Procedures Act of 1974 (Pub. L. No. 93-533) |
|
and its implementing regulations [chattel mortgage transaction
|
|
involving an installment contract], a retailer shall deliver to a |
|
consumer at least 24 hours before the contract is fully executed the |
|
contract, with all required information included, signed by the |
|
retailer. The delivery of the [installment] contract, with all |
|
required information included, signed by the retailer constitutes a |
|
firm offer by the retailer. Except as provided for in Subsection |
|
(b), the [The] consumer may accept the offer not earlier than 24 |
|
hours after the delivery of the contract. If the consumer has not |
|
accepted the offer within 72 hours after the delivery of the |
|
contract, the retailer may withdraw the offer. |
|
(b) The consumer may modify or waive the right to rescind |
|
and the deadlines for disclosures before the execution of the |
|
contract that are provided by Subsection (a) if the consumer |
|
determines that the purchase of the manufactured home is needed to |
|
meet a bona fide personal emergency. If the consumer has a bona |
|
fide personal emergency that necessitates the immediate purchase of |
|
the manufactured home, the consumer shall give the retailer a dated |
|
written statement that describes the emergency, specifically |
|
modifies or waives the notice periods and any right of rescission, |
|
and bears the signature of all of the consumers entitled to the |
|
disclosures and right of rescission. In such event the retailer |
|
shall immediately give the consumer all of the disclosures required |
|
by this code and sell the manufactured home without the required |
|
waiting periods or the right of rescission. Printed forms for this |
|
purpose are prohibited except in a county that has been declared |
|
by the governor to be a major disaster area. If the governor |
|
declares a county to be a major disaster area, the retailer may use |
|
printed forms promulgated by the department. This exception shall |
|
expire one year after the county has been declared a major disaster |
|
area. |
|
SECTION 25. Sections 1201.203, 1201.204, and 1201.205, |
|
Occupations Code, are amended to read as follows: |
|
Sec. 1201.203. FORMS; RULES. (a) The board [director] |
|
shall [prescribe forms and] adopt rules and forms relating to: |
|
(1) the manufacturer's certificate; |
|
(2) the statement of ownership and location; |
|
(3) the application for a statement of ownership and |
|
location; and |
|
(4) the issuance of an initial or revised [a] |
|
statement of ownership [and location at the first retail sale and
|
|
for a subsequent sale or transfer of a manufactured home]. |
|
(b) The board [director] shall adopt rules for the |
|
documenting of the ownership and location of a manufactured home |
|
that has been previously owned in this state or another state. The |
|
rules must protect a lienholder recorded with the department [on a
|
|
statement of ownership and location, a certificate, or other
|
|
document of title]. |
|
Sec. 1201.204. MANUFACTURER'S CERTIFICATE. (a) A |
|
manufacturer's certificate must show: |
|
(1) on a form prescribed by the director [or on another
|
|
document], the original transfer of a manufactured home from the |
|
manufacturer to the retailer; and |
|
(2) on a form prescribed by the director, each |
|
subsequent transfer of a manufactured home between retailers and |
|
from retailer to owner, if the transfer from retailer to owner |
|
involves a completed application for the issuance of a statement of |
|
ownership and location. |
|
(b) At the first retail sale of a manufactured home, a |
|
manufacturer's certificate automatically converts to a document |
|
that does not evidence any ownership interest in the manufactured |
|
home described in the document. A security interest in inventory |
|
evidenced by a properly recorded inventory finance lien [the
|
|
manufacturer's certificate] automatically converts to a security |
|
interest in proceeds and cash proceeds. |
|
(c) After the first retail sale of a manufactured home, the |
|
retailer must [may] submit the original manufacturer's certificate |
|
for that home to the department. If an application for an initial |
|
statement of ownership is made without the required manufacturer's |
|
certificate and the retailer does not provide it as required, the |
|
department shall, on or before the issuance of the requested |
|
statement of ownership and location, send written notice to each |
|
party currently reflected on the department's records as having a |
|
recorded lien on the inventory of that retailer. Failure to include |
|
the original manufacturer's certificate with such an application |
|
does not impair a consumer's ability to obtain, on submittal of an |
|
otherwise complete application, a statement of ownership and |
|
location free and clear of any liens other than liens created by or |
|
consented to by the consumer. |
|
Sec. 1201.205. STATEMENT OF OWNERSHIP AND LOCATION FORM. A |
|
statement of ownership and location must be evidenced by a |
|
board-approved form issued by the department setting forth |
|
[provide]: |
|
(1) the name [names] and address [addresses] of the |
|
[purchaser and] seller and the name and, if it is different from the |
|
location of the home, the mailing address of the new owner; |
|
(2) the manufacturer's name and address and any model |
|
designation, if available; |
|
(3) in accordance with the board's [director's] rules: |
|
(A) the outside dimensions of the manufactured |
|
home when installed for occupancy, as measured to the nearest |
|
one-half foot at the base of the home, exclusive of the tongue or |
|
other towing device; and |
|
(B) the approximate square footage of the home |
|
when installed for occupancy; |
|
(4) the identification number for each section or |
|
module of the home; |
|
(5) the physical address where [county of this state
|
|
in which] the home is installed for occupancy, including the name of |
|
the county, and, if it is different from the physical address, the |
|
mailing address of the owner of the home; |
|
(6) in chronological order of recordation, the date of |
|
each lien, other than a tax lien, on the home and the name and |
|
address of each lienholder, or, if a lien is not recorded, a |
|
statement of that fact; |
|
(7) a statement regarding tax liens as follows: |
|
"On January 1st of each year, a new tax lien comes into |
|
existence on a manufactured home in favor of each taxing unit having |
|
jurisdiction where the home is actually located on January 1st. In |
|
order to be enforced, any such lien must be recorded with the Texas |
|
Department of Housing and Community Affairs - Manufactured Housing |
|
Division as provided by law. You may check that division's records |
|
through its website or contact that division to learn any recorded |
|
tax liens. To find out about the amount of any unpaid tax |
|
liabilities, contact the tax office for the county where the home |
|
was actually located on January 1st of that year." [the signature of
|
|
the owner in ink, given on receipt of the document]; |
|
(8) a statement that if two or more eligible persons, |
|
as determined by Section 1201.213, file with the application for |
|
the issuance of a statement of ownership and location an agreement |
|
signed by all the persons providing that the home is to be held |
|
jointly with a right of survivorship, the director shall issue the |
|
statement of ownership and location in all the names; |
|
(9) the location of the home; |
|
(10) a statement of whether the owner has elected to |
|
treat the home as real property or personal property; |
|
(11) statements of whether the home is a salvaged |
|
manufactured home and whether the home is reserved for business use |
|
only; and |
|
(12) any other information the board [director] |
|
requires. |
|
SECTION 26. Section 1201.2055, Occupations Code, is amended |
|
by amending Subsection (b) and adding Subsection (i) to read as |
|
follows: |
|
(b) A statement of election under Subsection (a) must be |
|
executed before a notary on the form of application for statement |
|
and ownership and location promulgated by the board [made by
|
|
affidavit]. |
|
(i) Notwithstanding the 60-day deadline specified in |
|
Subsection (d), if the closing of a mortgage loan to be secured by |
|
real property including the manufactured home is held, the loan is |
|
funded, and a deed of trust covering the real property and all |
|
improvements on the property is recorded and the licensed title |
|
company or attorney who closed the loan failed to complete the |
|
conversion to real property in accordance with this chapter, the |
|
holder or servicer of the loan may apply for a statement of |
|
ownership and location electing real property status, obtain a |
|
certified copy of the statement of ownership and location, and make |
|
the necessary filings and notifications to complete such conversion |
|
at any time provided that: |
|
(1) the record owner of the home, as reflected on the |
|
department's records, has been given at least 60 days' prior written |
|
notice at: |
|
(A) the location of the home and, if it is |
|
different, the mailing address of the owner as specified in the |
|
department records; and |
|
(B) any other location the holder or servicer |
|
knows or believes, after a reasonable inquiry, to be an address |
|
where the owner may have been or is receiving mail or is an address |
|
of record; |
|
(2) such notification shall be given by certified |
|
mail; and |
|
(3) the department by rule shall require evidence that |
|
the holder or servicer requesting such after-the-fact completion of |
|
a real property election has complied with the requirements of this |
|
subsection. |
|
SECTION 27. Sections 1201.206, 1201.207, 1201.2075, |
|
1201.2076, and 1201.208, Occupations Code, are amended to read as |
|
follows: |
|
Sec. 1201.206. APPLICATION FOR ISSUANCE OF STATEMENT OF |
|
OWNERSHIP AND LOCATION. (a) [(b)] At the first retail sale of a |
|
manufactured home, the retailer shall provide for the installation |
|
of the home and ensure that the application for the issuance of a |
|
statement of ownership and location is properly completed. The |
|
consumer shall return the completed application to the retailer. |
|
In accordance with Section 1201.204, the retailer shall surrender |
|
to the department the original manufacturer's statement of origin |
|
at the same time that the retailer applies for the first statement |
|
of ownership and location. |
|
(b) [(c)] Not later than the 60th [30th] day after the date |
|
of the retail sale, the retailer shall provide to the department the |
|
completed application for the issuance of a statement of ownership |
|
and location. If for any reason the retailer does not timely comply |
|
with the requirements of this subsection, the consumer may apply |
|
for the issuance of the statement. |
|
(c) [(d)] Not later than the 60th [30th] day after the date |
|
of each subsequent sale or transfer of a home that is considered to |
|
be personal property, the seller or transferor shall provide to the |
|
department a completed application for the issuance of a new |
|
statement of ownership and location. If for any reason the seller |
|
or transferor does not timely comply with the requirements of this |
|
subsection, the consumer may apply for the issuance of the |
|
statement. |
|
(d) If the seller accepts a trade-in manufactured home as |
|
part of the consideration for the sale of another manufactured |
|
home, the seller shall file a completed application for the |
|
issuance of a new statement of ownership and location reflecting |
|
the change of ownership of the trade-in manufactured home from the |
|
prospective buyer to the seller. The seller shall file the |
|
application for the issuance of a new statement of ownership and |
|
location for the traded in manufactured home at the same time that |
|
the seller files the application for the issuance of a new statement |
|
of ownership and location for the manufactured home that was sold by |
|
the seller. If the seller is a retailer, the seller shall indicate |
|
on the application for the issuance of the new statement of |
|
ownership and location whether the trade-in manufactured home has |
|
been added to the inventory of the retailer. |
|
(e) Ownership of a manufactured home does not pass or vest |
|
at a sale or transfer of the home until a completed application for |
|
the issuance of a statement of ownership and location is filed with |
|
the department. |
|
(f) If the owner of a manufactured home relocates the home, |
|
the owner shall apply for the issuance of a new statement of |
|
ownership and location not later than the 60th [30th] day after the |
|
date the home is relocated. The department shall require that the |
|
owner submit evidence that the home was relocated in accordance |
|
with the requirements of the Texas Department of Transportation. |
|
(g) When the seller files an application for the issuance of |
|
a statement of ownership and location for a used manufactured home |
|
that is not in a retailer's inventory, the seller shall also file |
|
with the department a statement from the tax assessor-collector |
|
that there are no personal property taxes due on the manufactured |
|
home that may have accrued on each January 1 that falls within the |
|
18 months before the date of the sale. |
|
(h) If a person selling a manufactured home to a consumer |
|
for residential use fails to file with the department the |
|
application for the issuance of a statement of ownership and |
|
location and the appropriate filing fee before the 61st day after |
|
the date of the sale, the department may assess a fee of at least |
|
$100 against the seller. The department shall have the authority to |
|
enforce the collection of any fee from the seller through judicial |
|
means. The department shall place on the application for the |
|
issuance of a statement of ownership and location the following |
|
legend in a clear and conspicuous manner: |
|
"THE FILING OF AN APPLICATION FOR THE ISSUANCE OF A STATEMENT |
|
OF OWNERSHIP AND LOCATION LATER THAN SIXTY (60) DAYS AFTER THE DATE |
|
OF A SALE TO A CONSUMER FOR RESIDENTIAL USE MAY RESULT IN A FEE OF UP |
|
TO ONE HUNDRED DOLLARS ($100.00). ANY SUCH APPLICATION THAT IS |
|
SUBMITTED LATE MAY BE DELAYED UNTIL THE FEE IS PAID IN FULL." |
|
(i) When a properly completed notice of installation on the |
|
department's promulgated form is filed that relates to a secondary |
|
move, the notice must be accompanied by either: |
|
(1) one true and correct copy of the original notice of |
|
installation; or |
|
(2) a certification that a true and correct copy of the |
|
notice of installation has been provided to the chief appraiser for |
|
the county in which the home was installed; the delivery of the copy |
|
of the notice to the chief appraiser may be accomplished either by |
|
certified mail or by electronic mailing of the electronically |
|
reproduced document in a commonly readable format. |
|
(i-1) If the method specified in Subsection (i)(2) is used |
|
to report the installation, the department may adopt a discounted |
|
fee for the filing of the notice of installation. |
|
(j) In addition to providing each chief appraiser the |
|
monthly report required by Section 1201.220, the department shall, |
|
on request, provide the tax collector one copy of any requested |
|
reported notice of installation. |
|
(k) Notwithstanding any provision in this chapter to the |
|
contrary, if a person has acquired a manufactured home and the owner |
|
of record or any intervening owners of liens or equitable interests |
|
cannot be located to assist in documenting the chain of title, the |
|
department may issue a statement of ownership and location to the |
|
person claiming ownership if the person can provide a supporting |
|
affidavit describing the chain of title and such reasonable |
|
supporting proof as the director may require. |
|
Sec. 1201.207. ISSUANCE OF STATEMENT OF OWNERSHIP AND |
|
LOCATION. (a) Except as provided for in Subsection (a-1), the |
|
[The] department shall process any completed application for the |
|
issuance of a statement of ownership and location not later than the |
|
15th working day after the date the application is received by the |
|
department. If the department rejects an application, the |
|
department shall provide a clear and complete explanation of the |
|
reason for the rejection and instructions on how to cure any |
|
defects, if possible. |
|
(a-1) For the period immediately following June 30 of each |
|
year, the department shall, except for applications relating to new |
|
manufactured homes and applications accompanied by a tax |
|
certificate, cease issuing statements of ownership and location |
|
until all tax liens filed with the department before June 30 have |
|
been processed and either recorded or rejected. During this period |
|
the department will post on its website a notice as to when it is |
|
anticipated that processing statements of ownership and location |
|
will resume and when it is anticipated that such processing will be |
|
within the 15-working-day time frame provided by Subsection (a). |
|
(b) If the department issues a statement of ownership and |
|
location for a manufactured home, the department shall maintain a |
|
record of the issuance in its electronic records [place in its files
|
|
the original statement of ownership and location] and shall mail a |
|
[certified] copy to the owner and each [of the home and to any] |
|
lienholder. |
|
(c) Except with respect to any change in use, but subject to |
|
Section 1201.2075, if the department has issued a statement of |
|
ownership and location for a manufactured home, the department may |
|
issue a subsequent statement of ownership and location for the home |
|
only if all parties reflected in the department's records as having |
|
an interest in the manufactured home give their written consent or |
|
release their interest, either in writing or by operation of law, or |
|
the department has followed the procedures provided by Section |
|
1201.206(k) to document ownership and lien status. Once the |
|
department issues a statement of ownership and location, the |
|
department shall not alter the record of the ownership or lien |
|
status of a manufactured home for any activity occurring before the |
|
issuance of the statement of ownership and location without either |
|
the written permission of the owner of record for the manufactured |
|
home, their legal representative, or a court order. |
|
(d) Notwithstanding any other provision of this chapter, if |
|
the consumer purchases a new manufactured home from a licensed |
|
retailer in the ordinary course of business, whether or not a |
|
statement of ownership and location has been issued for the |
|
manufactured home, the consumer is a bona fide purchaser for value |
|
without notice and is entitled to ownership of the manufactured |
|
home free and clear of all liens and to a statement of ownership and |
|
location reflecting the same on payment by the consumer of the |
|
purchase price to the retailer. If there is an existing lien on the |
|
new manufactured home perfected with the department, the owner of |
|
the lien is entitled to recover the value of the lien from the |
|
retailer. |
|
(e) Notwithstanding any other provision of this chapter, if |
|
the consumer purchases a used manufactured home from a retailer in |
|
the ordinary course of business, the consumer takes the |
|
manufactured home free and clear of any liens created by the selling |
|
retailer even if they are recorded. |
|
Sec. 1201.2075. CONVERSION FROM PERSONAL PROPERTY TO REAL |
|
PROPERTY. (a) Except as provided by Subsection (b) or Section |
|
1201.206(k), the department may not issue a statement of ownership |
|
and location for a manufactured home that is being converted from |
|
personal property to real property until: |
|
(1) each lien on the home is released by the |
|
lienholder; or |
|
(2) each lienholder gives written consent, to be |
|
placed on file with the department. |
|
(b) The department may issue a statement of ownership and |
|
location before the release of any liens or the consent of any |
|
lienholders as required by this section [only] if the department |
|
releases a certified copy of the statement to: |
|
(1) a licensed title insurance company that has issued |
|
a commitment to issue a title insurance policy covering all prior |
|
liens on the home in connection with a loan that the title company |
|
has closed; or |
|
(2) a federally insured financial institution or |
|
licensed attorney who has obtained from a licensed title insurance |
|
company a title insurance policy covering all prior liens on the |
|
home. |
|
Sec. 1201.2076. CONVERSION FROM REAL PROPERTY TO PERSONAL |
|
PROPERTY. (a) The department may not issue a statement of |
|
ownership and location for a manufactured home that is being |
|
converted from real property to personal property until the |
|
department has inspected the home and determined that it is |
|
habitable and has notified the appropriate tax assessor-collector |
|
of the conversion and: |
|
(1) each lien, including a tax lien, on the home is |
|
released by the lienholder; or |
|
(2) each lienholder, including a taxing unit, gives |
|
written consent, to be placed on file with the department. |
|
(b) For the purposes of Subsection (a)(1), the department |
|
may rely on a commitment for title insurance, a title insurance |
|
policy, or a lawyer's title opinion to determine that any liens on |
|
real property have been released. |
|
Sec. 1201.208. PAYMENT OF TAXES REQUIRED FOR ISSUANCE OF |
|
STATEMENT OF OWNERSHIP AND LOCATION. (a) Any licensee who sells, |
|
exchanges, or lease-purchases a new manufactured home to any |
|
consumer is responsible for the payment of all required sales and |
|
use tax on such home [The department may not issue a statement of
|
|
ownership and location for a new manufactured home installed for
|
|
occupancy in this state unless the state sales and use tax has been
|
|
paid]. |
|
(b) If it is determined that a new manufactured home was |
|
sold, exchanged, or lease-purchased without the required sales and |
|
use tax being paid, the payment shall be made from the fund, up to |
|
the available penal amount of the licensee's bond or the remaining |
|
balance of the security for the license, and a claim for |
|
reimbursement shall be filed with the licensee's surety or the |
|
amount deducted from the security for the license [Proof of payment
|
|
may be shown in any manner prescribed by the department]. |
|
SECTION 28. Section 1201.210, Occupations Code, is amended |
|
by amending Subsection (c) and adding Subsection (d) to read as |
|
follows: |
|
(c) A notice of appeal and request for hearing must be filed |
|
with the director not later than the 30th day after the date of |
|
notice of the director's action. If appeal is not timely made, the |
|
revocation or suspension described in the notice of the director's |
|
action becomes final. |
|
(d) Until a revocation or suspension has become final, the |
|
department shall place a hold on any activity relating to the |
|
statement of ownership and location other than the recordation of |
|
liens, including tax liens. |
|
SECTION 29. Section 1201.214(b), Occupations Code, is |
|
amended to read as follows: |
|
(b) An owner or lienholder may provide to the department a |
|
[the] document of title and any additional information required by |
|
the department and request that the department issue a statement of |
|
ownership and location to replace the document of title. The |
|
department shall mail to the owner or lienholder a [certified] copy |
|
of the statement of ownership and location issued under this |
|
subsection. |
|
SECTION 30. Section 1201.216(a), Occupations Code, is |
|
amended to read as follows: |
|
(a) If the owner of a manufactured home notifies the |
|
department that the owner intends to treat the home as real property |
|
or to reserve its use for a business purpose or salvage, the |
|
department shall indicate on the statement of ownership and |
|
location for the home that: |
|
(1) the owner of the home has elected to treat the home |
|
as real property or to reserve its use for a business purpose or |
|
salvage; and |
|
(2) except as provided by Section 1201.2055(h), the |
|
home is [department] no longer [considers the home to be] a |
|
manufactured home for purposes of regulation under this chapter or |
|
of recordation of liens, including tax liens. |
|
SECTION 31. Section 1201.217, Occupations Code, is amended |
|
by amending Subsections (b) and (c) and adding Subsection (f) to |
|
read as follows: |
|
(b) Before declaring a manufactured home abandoned, the |
|
owner of real property on which the home is located must send a |
|
notice of intent to declare the home abandoned to the record owner |
|
of the home, [and] all lienholders at the addresses listed on the |
|
home's statement of ownership and location on file with the |
|
department, and the tax collector for each taxing unit that imposes |
|
ad valorem taxes on the real property where the home is located. |
|
The notice must include the address where the home is currently |
|
located. If the person giving such notice knows that the person to |
|
whom the notice is being given no longer resides and is no longer |
|
receiving mail at such address, a reasonable effort shall be made to |
|
locate the person and give the person notice at an address where the |
|
person is receiving mail. Mailing of the notice by certified mail, |
|
return receipt requested, postage prepaid, to the persons required |
|
to be notified by this subsection constitutes conclusive proof of |
|
compliance with this subsection. |
|
(c) On receipt of a notice of intent to declare a |
|
manufactured home abandoned, the record owner of the home, [or] a |
|
lienholder, or a tax assessor-collector for a taxing unit that |
|
imposes ad valorem taxes on the real property on which the home is |
|
located may enter the real property on which the home is located to |
|
remove the home. The real property owner must disclose to the |
|
record owner, lienholder, or tax assessor-collector seeking to |
|
remove the home the location of the home and grant the person |
|
reasonable access to the home. A person removing a home is |
|
responsible to the real property owner for any damage to the real |
|
property resulting from the removal of the home. |
|
(f) This section does not apply if the person who owns the |
|
real property on which the manufactured home is located and who is |
|
declaring that the home is abandoned, or any person who is related |
|
to or affiliated with that person, has now, or has ever owned, an |
|
interest in the manufactured home. |
|
SECTION 32. Sections 1201.219 and 1201.220, Occupations |
|
Code, are amended to read as follows: |
|
Sec. 1201.219. PERFECTION AND EFFECT OF LIENS. (a) A lien |
|
on manufactured homes in inventory is perfected only by filing the |
|
lien [a security agreement] with the department on the required |
|
form [in a form that contains the information the director
|
|
requires]. Once perfected, the lien applies to the manufactured |
|
homes in the inventory as well as to any proceeds from the sale of |
|
those homes. The department may suspend or revoke the license of a |
|
retailer who fails to satisfy a perfected inventory lien [under the
|
|
terms of the security agreement]. |
|
(b) Except as provided by Subsection (a), a lien on a |
|
manufactured home is perfected only by filing with the department |
|
the notice of lien on a form provided by the department. The form |
|
shall require the disclosure of the original dollar amount of the |
|
lien and, if a tax lien, the name and address of the person in whose |
|
name the manufactured home is listed on the tax roll. The |
|
department shall disclose on its website the date of each lien |
|
filing, the original amount of the lien claimed by each filing, and |
|
the fact that the amount shown does not include additional sums |
|
including interest, penalties, and attorney's fees. The statement |
|
required by Section 1201.205(7) [recordation of a lien with the
|
|
department] is notice to all persons that the tax lien exists. |
|
Except as expressly provided by Chapter 32, Tax Code, a lien |
|
recorded with the department has priority, according to the |
|
chronological order of recordation, over another lien or claim |
|
against the manufactured home. Tax liens shall be filed by the tax |
|
collector for any taxing unit having the power to tax the |
|
manufactured home. A single filing by a tax collector is a filing |
|
for all the taxing units for which the tax collector is empowered to |
|
collect. |
|
(c) Notwithstanding any other provision of this or any other |
|
law [subchapter], the filing of a lien security agreement [by a
|
|
secured party perfecting a lien] on the inventory of a retailer does |
|
not prevent a buyer in the ordinary course of business, as defined |
|
by Section 1.201, Business & Commerce Code, from acquiring good and |
|
marketable title free of that lien [interest], and the department |
|
may not consider that [security interest as a] lien for the purpose |
|
of title issuance. |
|
Sec. 1201.220. REPORT TO COUNTY TAX |
|
ASSESSOR-COLLECTOR. (a) The department shall provide to each |
|
county tax assessor-collector in this state a monthly report that, |
|
for each manufactured home reported as having been installed in the |
|
county during the preceding month and for each manufactured home |
|
previously installed in the county for which a transfer of |
|
ownership was recorded by the issuance of a statement of ownership |
|
and location during the preceding month, lists: |
|
(1) the name of the owner of the home; |
|
(2) the name of the manufacturer of the home, if |
|
available; |
|
(3) the model designation of the home, if available; |
|
(4) the identification number of each section or |
|
module of the home; |
|
(5) the address or location where the home was |
|
reported as [is] installed; and |
|
(6) the reported date of the installation of the home. |
|
(b) The director shall provide a copy of the report to the |
|
chief appraiser of the appraisal district established for the |
|
county in which the home is reported as installed. |
|
SECTION 33. The heading to Section 1201.251, Occupations |
|
Code, is amended to read as follows: |
|
Sec. 1201.251. STANDARDS AND REQUIREMENTS ADOPTED BY BOARD |
|
[DIRECTOR]. |
|
SECTION 34. Section 1201.251, Occupations Code, is amended |
|
by amending Subsection (a) and adding Subsections (d) and (e) to |
|
read as follows: |
|
(a) The board [director] shall adopt standards and |
|
requirements for: |
|
(1) the installation and construction of manufactured |
|
housing that are reasonably necessary to protect the health, |
|
safety, and welfare of the occupants and the public; and |
|
(2) the construction of HUD-code manufactured homes in |
|
compliance with the federal standards and requirements established |
|
under the National Manufactured Housing Construction and Safety |
|
Standards Act of 1974 (42 U.S.C. Section 5401 et seq.). |
|
(d) In order to ensure that the determinations required by |
|
this section are properly made by qualified persons: |
|
(1) the board's rules may provide for the approval of |
|
foundation systems and devices that have been approved by licensed |
|
engineers; and |
|
(2) any generic installation standards promulgated by |
|
rule shall first be reviewed by an advisory committee established |
|
by the board comprised of representatives of manufacturers, |
|
installers, and manufacturers of stabilization systems or devices, |
|
including one or more licensed engineers. |
|
(e) The advisory committee established by Subsection (d) |
|
shall make a report to the board setting forth each comment and |
|
concern over any proposed rules. The members of the committee shall |
|
have no personal liability for providing this advice. |
|
SECTION 35. Section 1201.252(a), Occupations Code, is |
|
amended to read as follows: |
|
(a) A local governmental unit of this state may not adopt a |
|
standard for the construction or installation of manufactured |
|
housing in the local governmental unit that is different from a |
|
standard adopted by the board [director] unless, after a hearing, |
|
the board expressly approves the proposed standard. |
|
SECTION 36. Sections 1201.253, 1201.254, and 1201.255, |
|
Occupations Code, are amended to read as follows: |
|
Sec. 1201.253. HEARING ON STANDARD OR REQUIREMENT. The |
|
director shall publish notice and conduct a public hearing [in
|
|
accordance with Sections 1201.054 and 1201.060] before: |
|
(1) adopting a standard or requirement authorized by |
|
this subchapter; |
|
(2) amending a standard authorized by this subchapter; |
|
or |
|
(3) approving a standard proposed by a local |
|
governmental unit under Section 1201.252. |
|
Sec. 1201.254. EFFECTIVE DATE OF REQUIREMENT OR |
|
STANDARD. Each requirement or standard that is adopted, modified, |
|
amended, or repealed by the board [director] must state its |
|
effective date [as provided by Section 1201.054]. |
|
Sec. 1201.255. INSTALLATION OF MANUFACTURED HOUSING. (a) |
|
Except as authorized under Section 1201.252, manufactured housing |
|
that is installed must be installed in compliance with the |
|
standards and rules adopted and orders issued by the department. An |
|
uninstalled manufactured home may not be occupied for any purpose. |
|
(b) An installer may not install a manufactured home at a |
|
location on a site that has evidence of ponding, runoff under heavy |
|
rains, or bare uncompacted soil unless the installer first obtains |
|
the owner's signature on a form promulgated by the board disclosing |
|
that such conditions may contribute to problems with the |
|
stabilization system for that manufactured home, including |
|
possible damage to that home, and the owner accepts that risk |
|
[director]. |
|
SECTION 37. Section 1201.301(b), Occupations Code, is |
|
amended to read as follows: |
|
(b) In enforcing this chapter, the director may authorize a |
|
state inspector to travel inside or outside of the state to inspect |
|
a licensee [manufacturing facility]. |
|
SECTION 38. The heading to Section 1201.302, Occupations |
|
Code, is amended to read as follows: |
|
Sec. 1201.302. INSPECTION BY LOCAL GOVERNMENTAL UNITS |
|
[ENTITIES OTHER THAN DEPARTMENT]. |
|
SECTION 39. Sections 1201.302(a) and (b), Occupations Code, |
|
are amended to read as follows: |
|
(a) To ensure that a manufactured home sold or installed in |
|
this state complies with the standards code, the director may by |
|
contract provide for a federal agency or an agency or political |
|
subdivision of this state or another state to perform an inspection |
|
or inspection program under this chapter or under rules adopted by |
|
the board [director]. |
|
(b) On request, the department shall authorize a local |
|
governmental unit in this state to perform an inspection or |
|
enforcement activity related to the construction of a foundation |
|
system or the erection or installation of manufactured housing at a |
|
homesite under a contract or other official designation and rules |
|
adopted by the board [director]. The department may withdraw the |
|
authorization if the local governmental unit fails to follow the |
|
rules, interpretations, and written instructions of the |
|
department. |
|
SECTION 40. Sections 1201.351(a) and (b), Occupations Code, |
|
are amended to read as follows: |
|
(a) The manufacturer of a new HUD-code manufactured home |
|
shall warrant, in a separate written document, that: |
|
(1) the home is constructed or assembled in accordance |
|
with all building codes, standards, requirements, and regulations |
|
prescribed by the United States Department of Housing and Urban |
|
Development under the National Manufactured Housing Construction |
|
and Safety Standards Act of 1974 (42 U.S.C. Section 5401 et seq.); |
|
and |
|
(2) the home and all appliances and equipment included |
|
in the home are free from defects in materials or workmanship except |
|
for cosmetic defects. |
|
(b) The manufacturer's warranty is in effect until at least |
|
the first anniversary of the date of initial installation of the |
|
home at the consumer's homesite or the closing of the consumer's |
|
purchase or acquisition of an already installed new home, whichever |
|
is later. |
|
SECTION 41. Sections 1201.352 through 1201.355, |
|
Occupations Code, are amended to read as follows: |
|
Sec. 1201.352. RETAILER'S WARRANTY ON A NEW HUD-CODE |
|
MANUFACTURED HOME. (a) The retailer of a new HUD-code |
|
manufactured home shall warrant to the consumer in writing that: |
|
(1) installation of the home at the initial homesite |
|
was or will be, as applicable, completed in accordance with all |
|
department standards, rules, orders, and requirements; and |
|
(2) appliances and equipment included with the sale of |
|
the home and installed by the retailer are or will be: |
|
(A) installed in accordance with the |
|
instructions or specifications of the manufacturers of the |
|
appliances or equipment; and |
|
(B) free from defects in materials or |
|
workmanship. |
|
The warranty may expressly disclaim or limit any warranty |
|
regarding cosmetic defects. |
|
(b) The retailer's warranty on a new HUD-code manufactured |
|
home is in effect until the first anniversary of the later of the |
|
date of initial installation of the home at the consumer's homesite |
|
or the closing of the consumer's purchase or acquisition of the |
|
home. |
|
(c) Before the signing of a binding retail installment sales |
|
contract or other binding purchase agreement on a new HUD-code |
|
manufactured home, the retailer must give the consumer a copy of: |
|
(1) the manufacturer's warranty; |
|
(2) the retailer's warranty; |
|
(3) the warranties given by the manufacturers of |
|
appliances or equipment included with the home; and |
|
(4) the name and address of the manufacturer or |
|
retailer to whom the consumer is to give notice of a warranty |
|
service request. |
|
(d) Not later than the 30th day after the installation of a |
|
new HUD-code manufactured home, the retailer shall deliver to the |
|
consumer a copy of the warranty given by the licensed installer. |
|
Sec. 1201.353. NOTICE OF NEED FOR WARRANTY SERVICE. (a) |
|
The consumer shall give written notice to the manufacturer, [or] |
|
retailer, or installer, as applicable, of a need for warranty |
|
service or repairs. |
|
(b) Written notice to the department is deemed to be notice |
|
to the manufacturer, [or] retailer, or installer commencing three |
|
business days after receipt and forwarding of the notice by the |
|
department to the licensee by regular mail or electronic mail of a |
|
scanned copy of the notice. |
|
Sec. 1201.354. CORRECTIVE ACTION REQUIRED. The |
|
manufacturer, [or] retailer, or installer, as applicable, shall |
|
take appropriate corrective action within a reasonable period as |
|
required by department rules to fulfill the written warranty |
|
obligation. |
|
Sec. 1201.355. CONSUMER COMPLAINT HOME INSPECTION. (a) If |
|
the manufacturer, [or] retailer, or installer does not provide the |
|
consumer with proper warranty service, the consumer may, at any |
|
time, request the department to perform a consumer complaint home |
|
inspection. The department may not charge a fee for the inspection. |
|
(b) On payment of the required inspection fee, the |
|
manufacturer, [or] retailer, or installer may request the |
|
department to perform a consumer complaint home inspection if the |
|
manufacturer, [or] retailer, or installer: |
|
(1) believes the consumer's complaints are not covered |
|
by the warranty of the manufacturer, [or] retailer, or installer, |
|
as applicable; |
|
(2) believes that the warranty service was properly |
|
provided; or |
|
(3) disputes responsibility concerning the warranty |
|
obligation. |
|
(c) The department shall perform a consumer complaint home |
|
inspection not later than the 30th day after the date of receipt of |
|
a request for the inspection. |
|
(d) Notwithstanding any other provision of this section, |
|
the department may make an inspection at any time if it believes |
|
that there is a reasonable possibility that a condition exists that |
|
would present an imminent threat to health or safety. |
|
SECTION 42. Sections 1201.356(a), (b), and (c), Occupations |
|
Code, are amended to read as follows: |
|
(a) Not later than the 10th day after the date of a consumer |
|
complaint home inspection, the department shall send a written |
|
report and any order to the consumer, manufacturer, [and] retailer, |
|
and installer by certified mail, return receipt requested. |
|
(b) The report shall specify: |
|
(1) each of the consumer's complaints; and |
|
(2) whether the complaint is covered by [either] the |
|
manufacturer's, [or] retailer's, or installer's warranty and, if |
|
so, which of those warranties. |
|
(c) The director shall issue to the manufacturer, [or] |
|
retailer, or installer an appropriate order for corrective action |
|
by the manufacturer, [or] retailer, or installer specifying a |
|
reasonable period for completion of the corrective action. With |
|
regard to new manufactured homes, both the installer and the |
|
retailer are responsible for the warranty of installation. If the |
|
department determines that a complaint is covered by the |
|
installation warranty, the director shall issue the order to the |
|
installer for the corrective action. If the installer fails to |
|
perform the corrective action, the installer shall be subject to |
|
the provisions of Section 1201.357. In that instance, the director |
|
shall issue the same order for corrective action to the retailer |
|
with a new time frame not to exceed 10 days unless additional time |
|
is needed for compliance upon a showing of good cause. If the |
|
retailer is compelled to perform corrective action because of the |
|
failure of the installer to comply with the director's order, the |
|
retailer may seek reimbursement from the installer. The period for |
|
the performance of any required warranty work may be shortened by |
|
the director as much as is feasible if the warranty work is believed |
|
necessary to address a possible imminent threat to health or |
|
safety. |
|
SECTION 43. Sections 1201.357 and 1201.358, Occupations |
|
Code, are amended to read as follows: |
|
Sec. 1201.357. FAILURE TO PROVIDE WARRANTY SERVICE. (a) |
|
If the manufacturer, [or] retailer, or installer, as applicable, |
|
fails to provide warranty service within a [the] period specified |
|
by the director [under Section 1201.356], the manufacturer, [or] |
|
retailer, or installer must show good cause in writing as to why the |
|
manufacturer, [or] retailer, or installer failed to provide the |
|
service. |
|
(b) If the manufacturer, [or] retailer, or installer, as |
|
applicable, fails or refuses to provide warranty service in |
|
accordance with the department order under Section 1201.356, the |
|
director shall hold an informal meeting [a hearing] at which the |
|
manufacturer, [or] retailer, or installer must show cause as to why |
|
the manufacturer's, [or] retailer's, or installer's license should |
|
not be suspended or revoked and at which the consumer may express |
|
the person's views. Following the meeting, the director shall |
|
either resolve the matter by agreed order, dismiss the matter if no |
|
violation is found to have occurred, or institute an administrative |
|
action, which may include license suspension or revocation, the |
|
assessment of administrative penalties, or a combination of such |
|
actions. |
|
(c) If the manufacturer, [or] retailer, or installer is |
|
unable to provide warranty service in accordance with the |
|
department order under Section 1201.356 as a result of an action of |
|
the consumer, the manufacturer, [or] retailer, or installer must |
|
make that allegation in the written statement required by |
|
Subsection (a). The department shall investigate the allegation, |
|
and if the department determines that the allegation is credible, |
|
the department shall issue a new order specifying the date and time |
|
of the proposed corrective action. The department shall send the |
|
order to the consumer and the manufacturer, [or] retailer, or |
|
installer, as applicable, by certified mail, return receipt |
|
requested. If the consumer refuses to comply with the department's |
|
new order, the manufacturer, [or] retailer, or installer, as |
|
applicable: |
|
(1) is discharged from the obligations imposed by the |
|
relevant department orders; |
|
(2) has no liability to the consumer with regard to |
|
that warranty; and |
|
(3) is not subject to an action by the department for |
|
failure to provide warranty service. |
|
Sec. 1201.358. FAILURE TO SHOW GOOD CAUSE; HEARING |
|
RESULTS. (a) Failure by the manufacturer, [or] retailer, or |
|
installer to show good cause under Section 1201.357(a) is a |
|
sufficient basis for suspension or revocation of the |
|
manufacturer's, [or] retailer's, or installer's license. |
|
(b) If the director determines that an order was incorrect |
|
regarding a warranty obligation, the director shall issue a final |
|
order stating the correct warranty obligation and the right of the |
|
manufacturer, retailer, or installer to indemnification from one of |
|
the other parties [after the hearing under Section 1201.357(b), the
|
|
director determines that the order under Section 1201.356 was
|
|
correct in the determination of the warranty obligation of the
|
|
manufacturer or retailer, failure or refusal by the manufacturer or
|
|
retailer to comply with the order is a sufficient cause for
|
|
suspension or revocation of the manufacturer's or retailer's
|
|
license. If the director determines that the order was incorrect
|
|
regarding that obligation, the director shall issue a final order
|
|
stating the correct obligation and the right of the manufacturer or
|
|
retailer to indemnification from the other]. |
|
(c) The director may issue an order: |
|
(1) directing a manufacturer, [or] retailer, or |
|
installer whose license is not revoked and who is not out of |
|
business to perform the warranty obligation of a manufacturer, [or] |
|
retailer, or installer whose license is revoked or who is out of |
|
business; and |
|
(2) giving the manufacturer, [or] retailer, or |
|
installer performing the obligation the right of indemnification |
|
against another party [the other]. |
|
(d) A manufacturer, [or] retailer, or installer entitled to |
|
indemnification under this section is a consumer for purposes of |
|
Subchapter I and may recover actual damages [and attorney's fees] |
|
from the trust fund. |
|
SECTION 44. Section 1201.361, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.361. INSTALLER'S WARRANTY. (a) For all |
|
[secondary] installations [not covered by the retailer's warranty
|
|
described by Section 1201.352 and for the installation of all used
|
|
manufactured homes], the installer shall give the manufactured home |
|
owner a written warranty that the installation of the home was |
|
performed in accordance with all department standards, rules, |
|
orders, and requirements. The warranty for the installation of a |
|
new HUD-code manufactured home is to be given by the retailer, who |
|
is responsible for installation. If the retailer subcontracts this |
|
function to a licensed installer, the retailer and installer are |
|
jointly and severally responsible for performance of the warranty. |
|
(b) The warranty must conspicuously disclose the |
|
requirement that the consumer notify the installer of any claim in |
|
writing in accordance with the terms of the warranty. Unless the |
|
warranty provides for a longer period, the installer or retailer |
|
has no obligation or liability under the person's warranty for any |
|
defect described in a written notice received from the consumer |
|
more than two years after the later of the date of purchase or the |
|
date of [the] installation. |
|
SECTION 45. Subchapter H, Chapter 1201, Occupations Code, |
|
is amended by adding Section 1201.362 to read as follows: |
|
Sec. 1201.362. INSPECTIONS NOT LIMITED; CORRECTIONS. (a) |
|
Nothing in this chapter shall limit the ability of the department to |
|
inspect a manufactured home at any time. |
|
(b) Notwithstanding the limitations and terms of any |
|
warranty, the director may, whenever the department identifies any |
|
aspect of an installation that does not conform to applicable |
|
requirements, order the licensee who performed the installation to |
|
correct it, or, if that licensee is no longer licensed, reassign |
|
correction to a licensed installer and reimburse the person from |
|
the fund for the costs of correction. |
|
SECTION 46. Section 1201.402(a), Occupations Code, is |
|
amended to read as follows: |
|
(a) The director shall administer the trust fund [as trustee
|
|
of that fund]. |
|
SECTION 47. Section 1201.404(b), Occupations Code, is |
|
amended to read as follows: |
|
(b) The trust fund and the director are not liable to the |
|
consumer if the trust fund does not have the money necessary to pay |
|
the actual damages [and attorney's fees] determined to be payable. |
|
The director shall record the date and time of receipt of each |
|
verified complaint and, as money becomes available, pay the |
|
consumer whose claim is the earliest by date and time to have been |
|
found to be verified and properly payable. |
|
SECTION 48. Section 1201.405, Occupations Code, is amended |
|
by adding Subsections (f) and (g) to read as follows: |
|
(f) The trust fund is not liable for and the director may not |
|
pay: |
|
(1) actual damages to reimburse an affiliate or |
|
related person of a licensee, except when the director issues an |
|
order under Sections 1201.358(b) and (c); |
|
(2) actual damages to correct matters that are solely |
|
cosmetic in nature; |
|
(3) for attorney's fees; or |
|
(4) actual damages to address other matters, unless |
|
the matters involve: |
|
(A) a breach of warranty; |
|
(B) a failure to return or apply as agreed money |
|
received from a consumer or money for which the consumer was |
|
obligated; or |
|
(C) the breach of an agreement to provide goods |
|
or services necessary to the safe and habitable use of a |
|
manufactured home such as steps, air conditioning, access to |
|
utilities, or access to sewage and wastewater treatment. |
|
(g) The board by rule may place reasonable limits on the |
|
costs that may be approved for payment from the trust fund, |
|
including the costs of reassigned warranty work, and require |
|
consumers making claims that may be subject to reimbursement from |
|
the trust fund to provide estimates establishing that the cost will |
|
be reasonable. Such rules may also specify such procedures and |
|
requirements as the board may deem necessary and advisable for the |
|
administration of the trust fund. |
|
SECTION 49. Sections 1201.406 and 1201.407, Occupations |
|
Code, are amended to read as follows: |
|
Sec. 1201.406. PROCEDURE FOR RECOVERY FROM TRUST FUND. (a) |
|
To recover from the trust fund, a consumer must file a written, |
|
sworn complaint in the form required by the director not later than |
|
the second anniversary of: |
|
(1) the date of the alleged act or omission causing the |
|
actual damages; or |
|
(2) the date the act or omission is discovered or |
|
should reasonably have been discovered. |
|
(b) On receipt of a verified complaint, the department |
|
shall: |
|
(1) notify each appropriate license holder and the |
|
issuer of any surety bond issued in connection with their licenses; |
|
and |
|
(2) investigate the claim and issue a preliminary |
|
determination, giving the consumer, the licensee, and any surety an |
|
opportunity to resolve the matter by agreement or to dispute the |
|
preliminary determination. |
|
(c) If the matter being investigated is not resolved by |
|
agreement or is disputed by written notice to the director before |
|
the 31st day after the date of the preliminary determination, the |
|
preliminary determination shall automatically become final and the |
|
director shall make demand on the surety or deduct any payable |
|
amount of the claim from the licensee's security [to determine:
|
|
[(A) the validity of the claim; and
|
|
[(B)
whether the complaint can be resolved by
|
|
remedial action of the license holder]. |
|
Sec. 1201.407. DISAGREEMENT OF PARTIES; INFORMAL DISPUTE |
|
RESOLUTION PROCESS. (a) If a preliminary determination is |
|
disputed, the [license holders or a license holder and a consumer
|
|
disagree as to responsibility for a complaint, the] department |
|
shall conduct an informal dispute resolution process, including a |
|
home inspection if appropriate, to resolve the dispute. |
|
(b) For a preliminary determination that has been disputed |
|
[claim determined] to become final and [be] valid, the department |
|
shall make any changes the director determines to be appropriate |
|
and issue another written [a] preliminary determination [during the
|
|
informal dispute resolution process] as to the responsibility and |
|
liability of the manufacturer, retailer, broker, and installer. |
|
(c) Before making a final determination, the department |
|
shall allow [provide] a license holder 10 days [an opportunity] to |
|
comment on this [the] preliminary determination. |
|
(d) After consideration of the comments, if any, the |
|
director shall issue a final determination. |
|
(e) The final determination may be appealed to the board on |
|
or before the 10th day after the date of its issuance by giving |
|
written notice to the director, who shall place the matter before |
|
the board at the next meeting held on a date for which the matter |
|
could be publicly posted as required by Chapter 551, Government |
|
Code. |
|
(f) Any [The department shall notify a license holder's
|
|
surety and give the surety an opportunity to participate in the
|
|
informal dispute resolution process if the license holder:
|
|
[(1) is out of business;
|
|
[(2) is no longer licensed; or
|
|
[(3)
has filed for liquidation or reorganization in
|
|
bankruptcy.
|
|
[(e)
If, after receiving notice of the claim, a license
|
|
holder or the license holder's surety fails or refuses to
|
|
participate in the informal dispute resolution process, the] |
|
license holder or surety, as applicable, is bound by the |
|
department's final determination of responsibility and liability. |
|
SECTION 50. Sections 1201.409(a) and (b), Occupations Code, |
|
are amended to read as follows: |
|
(a) Except as otherwise provided by Subchapter C, the trust |
|
fund shall be reimbursed by the surety on a bond or from other |
|
security filed under Subchapter C for the amount of a claim that[:
|
|
[(1)] is paid out of the trust fund by the director to |
|
a consumer in accordance with this subchapter[; and
|
|
[(2)
resulted from an act or omission of the license
|
|
holder who filed the bond or other security]. |
|
(b) Payment by the surety or from the other security must be |
|
made not later than the 30th day after the date of [receipt of] |
|
notice from the director that a consumer claim has been paid. |
|
SECTION 51. Section 1201.410, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.410. INFORMATION ON RECOVERY FROM TRUST FUND |
|
[INFORMATIONAL PAMPHLET]. [(a)] The director shall prepare |
|
information for notifying [a pamphlet informing] consumers of their |
|
rights to recover from the trust fund, shall post the information on |
|
the department's website, and shall make printed copies available |
|
on request. |
|
[(b)
The director may contract with a private party for the
|
|
printing and distribution of the pamphlet.] |
|
SECTION 52. Section 1201.451(b), Occupations Code, is |
|
amended to read as follows: |
|
(b) Not later than the 60th [30th] day after the effective |
|
date of the transfer of ownership or the date the seller or |
|
transferor obtains possession of the necessary and properly |
|
executed documents, the seller or transferor shall forward to the |
|
purchaser or transferee the necessary, executed documents. If the |
|
seller or transferor fails to forward the documents on a timely |
|
basis, the purchaser or transferee may apply directly for the |
|
documents. On receipt of the documents, the purchaser or |
|
transferee shall apply for the issuance of a statement of ownership |
|
and location. |
|
SECTION 53. Section 1201.453, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.453. HABITABILITY. Manufactured housing is |
|
habitable only if: |
|
(1) there is no defect or deterioration in or damage to |
|
the home that creates a dangerous situation; |
|
(2) the plumbing, heating, and electrical systems are |
|
in safe working order; |
|
(3) the walls, floor, and roof are: |
|
(A) free from a substantial opening that was not |
|
designed; and |
|
(B) structurally sound; and |
|
(4) all exterior doors and windows are in place and |
|
operate properly. |
|
SECTION 54. Section 1201.457(b), Occupations Code, is |
|
amended to read as follows: |
|
(b) If a used manufactured home is reserved for business use |
|
or salvaged, a person may not [The purchaser of a used manufactured
|
|
home for business use or the purchaser of a salvaged manufactured
|
|
home may not sell, exchange, or lease-purchase the home for use as a
|
|
dwelling or] knowingly allow any person to occupy or use the home as |
|
a dwelling unless the director issues a new statement of ownership |
|
and location indicating that the home is no longer reserved for |
|
business use or salvage. On the purchaser's application to the |
|
department for issuance of a new statement of ownership and |
|
location, the department shall inspect the home and, if the |
|
department determines that the home is habitable, issue a new [the] |
|
statement of ownership and location. |
|
SECTION 55. Section 1201.459, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.459. COMPLIANCE NOT REQUIRED FOR SALE FOR |
|
COLLECTION OF DELINQUENT TAXES. (a) In selling a manufactured |
|
home to collect delinquent taxes, a tax assessor-collector |
|
[collector] is not required to comply with this subchapter or |
|
another provision of this chapter relating to the sale of a used |
|
manufactured home. |
|
(b) If a [the] home does not have a serial number, seal, or |
|
label, the tax appraiser or tax assessor-collector [collector] |
|
may[:
|
|
[(1)] apply to the department for a seal if the tax |
|
appraiser or assessor-collector assumes full responsibility for |
|
the affixation of a seal to the home and the seal is actually |
|
affixed on the home[;
|
|
[(2) pay the applicable fee; and
|
|
[(3)
recover that fee as part of the cost of the sale
|
|
of the home]. |
|
(c) A [The] seal issued to a tax appraiser or [the] tax |
|
assessor-collector [collector] is for identification purposes only |
|
and does not imply that: |
|
(1) the home is habitable; or |
|
(2) a purchaser of the home at a tax sale may obtain a |
|
new statement of ownership and location from the department without |
|
an inspection for habitability. |
|
SECTION 56. The heading to Section 1201.461, Occupations |
|
Code, is amended to read as follows: |
|
Sec. 1201.461. SALVAGED MANUFACTURED HOME; CRIMINAL |
|
PENALTY. |
|
SECTION 57. Section 1201.461, Occupations Code, is amended |
|
by adding Subsections (g) and (h) to read as follows: |
|
(g) A county or other unit of local government that |
|
identifies a manufactured home within its jurisdiction that has |
|
been declared salvage may impose on that home such inspection, |
|
correction, and other requirements as it could apply if the home |
|
were not a manufactured home. |
|
(h) A licensee may not participate in the sale, exchange, |
|
lease-purchase, or installation for use as a dwelling of a |
|
manufactured home that is salvage and that has not been repaired in |
|
accordance with this chapter and the department's rules. An act |
|
that is prohibited by this subsection is deemed to be a practice |
|
that constitutes an imminent threat to health or safety and is |
|
subject to the imposition of penalties and other sanctions provided |
|
for by this chapter. A violation of this subsection is a Class B |
|
misdemeanor. |
|
SECTION 58. Section 1201.503, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.503. PROHIBITED ALTERATION. Before the sale to a |
|
consumer of a new manufactured home to which a label has been |
|
attached and before installation of the home, a manufacturer, |
|
retailer, broker, or installer may not alter the home or cause the |
|
home to be altered without obtaining prior written approval from a |
|
licensed engineer and providing evidence of such approval to the |
|
department. |
|
SECTION 59. Section 1201.506(a), Occupations Code, is |
|
amended to read as follows: |
|
(a) A retailer or broker: |
|
(1) shall comply with Subtitles A and B, Title 4, |
|
Finance Code, and the Truth in Lending Act (15 U.S.C. Section 1601 |
|
et seq.); [and] |
|
(2) may not advertise an interest rate or finance |
|
charge that is not expressed as an annual percentage rate; and |
|
(3) shall comply with all applicable provisions of the |
|
Finance Code. |
|
SECTION 60. Subchapter K, Chapter 1201, Occupations Code, |
|
is amended by adding Section 1201.513 to read as follows: |
|
Sec. 1201.513. DISPOSITION OF TRADE-INS AND OCCUPANCY OF |
|
HOMES BEFORE CLOSING. (a) A retailer may not sell a trade-in |
|
manufactured home before the closing of the sale in connection with |
|
which the retailer receives the trade-in. |
|
(b) A retailer may not knowingly permit a consumer to occupy |
|
a manufactured home that is the subject of a sale, exchange, or |
|
lease-purchase to that consumer before the closing of any required |
|
financing unless the consumer is first given a form adopted by the |
|
board disclosing that if for any reason the financing does not |
|
close, the consumer may be required to vacate the home. |
|
SECTION 61. Sections 1201.551, 1201.552, and 1201.553, |
|
Occupations Code, are amended to read as follows: |
|
Sec. 1201.551. DENIAL OF LICENSE; DISCIPLINARY |
|
ACTION. (a) The director[, after notice as provided for under
|
|
Section 1201.054 and a hearing as provided by Sections 1201.054 and
|
|
1201.060,] may deny, permanently revoke, or suspend for a definite |
|
period and specified sales location or geographic area a license if |
|
the director determines that the applicant or license holder: |
|
(1) knowingly and wilfully violated this chapter or a |
|
rule adopted or order issued under this chapter; |
|
(2) unlawfully retained or converted money, property, |
|
or any other thing of value from a consumer in the form of a down |
|
payment, sales or use tax, deposit, or insurance premium; |
|
(3) failed repeatedly to file with the department a |
|
completed [timely provide to a consumer an] application for a |
|
statement of ownership and location before the 61st day after the |
|
date of the sale of a manufactured home as required by Section |
|
1201.206 or the date of the installation, whichever occurred later |
|
[and any information necessary to complete the application]; |
|
(4) failed to give or breached a manufactured home |
|
warranty required by this chapter or by the Federal Trade |
|
Commission; |
|
(5) engaged in a false, misleading, or deceptive act |
|
or practice as described by Subchapter E, Chapter 17, Business & |
|
Commerce Code; |
|
(6) failed to provide or file a report required by the |
|
department for the administration or enforcement of this chapter; |
|
(7) provided false information on an application, |
|
report, or other document filed with the department; |
|
(8) acquired a criminal record during the five-year |
|
period preceding the application date that, in the opinion of the |
|
director, makes the applicant unfit for licensing; [or] |
|
(9) failed to file a bond or other security for each |
|
location as required by Subchapter C; or |
|
(10) has had another license issued by this state |
|
revoked or suspended. |
|
(b) The director [department] may suspend or revoke a |
|
license if, after receiving notice of a claim, the license holder or |
|
the license holder's surety fails or refuses to pay a final claim |
|
paid from the trust fund for which demand for reimbursement was made |
|
[participate in the informal dispute resolution process described
|
|
by Section 1201.407]. |
|
Sec. 1201.552. [HEARING CONCERNING] LICENSE REVOCATION, |
|
SUSPENSION, OR DENIAL; HEARING. The director may issue an order to |
|
revoke, suspend, or deny a new or renewal license. If, before the |
|
31st day after an order revoking, suspending, or denying a license |
|
is issued, the person against whom the order is issued requests a |
|
hearing by giving written notice to the director, the director |
|
shall set a hearing before the State Office of Administrative |
|
Hearings. If the person does not request a hearing before the 31st |
|
day after the date the order is issued, the order becomes final. |
|
Any administrative proceedings relating to the revocation, |
|
suspension, or denial of a license under this subsection shall be a |
|
contested case under Chapter 2001, Government Code. The board |
|
shall issue an order after receiving a proposal for decision [shall
|
|
conduct a hearing involving the denial, renewal, revocation, or
|
|
suspension of a license in accordance with Chapter 2001, Government
|
|
Code]. |
|
Sec. 1201.553. JUDICIAL REVIEW. Judicial review of any |
|
[an] order, decision, or determination of the board [director] is |
|
instituted by filing a petition with a district court in Travis |
|
County as provided by Chapter 2001, Government Code. |
|
SECTION 62. Section 1201.605, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1201.605. ADMINISTRATIVE PENALTY. (a) The director |
|
may assess against a person who fails to comply with [obtain or
|
|
maintain a license as required by] this chapter, the rules adopted |
|
under this chapter, or any final order of the department an |
|
administrative penalty in an amount not to exceed $10,000 for each |
|
violation of this chapter and: |
|
(1) reasonable attorney's fees; |
|
(2) administrative costs; |
|
(3) witness fees; |
|
(4) investigative costs; and |
|
(5) deposition expenses. |
|
(b) The director may assess against a licensee [retailer] |
|
who fails to provide information to a consumer as required by this |
|
chapter an administrative penalty in an amount not to exceed: |
|
(1) $1,000 for the first violation; |
|
(2) $2,000 for the second violation; and |
|
(3) $4,000 for each subsequent violation. |
|
(c) In determining the amount of an administrative penalty |
|
assessed under this section, the director shall consider: |
|
(1) the seriousness of the violation; |
|
(2) the history of previous violations; |
|
(3) the amount necessary to deter future violations; |
|
(4) efforts made to correct the violation; and |
|
(5) any other matters that justice may require. |
|
(d) The director may impose an administrative penalty in |
|
accordance with this section. If, before the 31st day after the |
|
date a person receives notice of the imposition of an |
|
administrative penalty, the person requests a hearing by giving |
|
written notice to the director, the director shall set a hearing |
|
before the State Office of Administrative Hearings. If the person |
|
does not request a hearing before the 31st day after the date the |
|
person receives notice of the imposition of the administrative |
|
penalty, the penalty becomes final. Any administrative proceedings |
|
relating to the imposition of an administrative penalty under this |
|
subsection shall be a contested case under Chapter 2001, Government |
|
Code. The board shall issue an order after receiving a proposal for |
|
decision. |
|
SECTION 63. Subchapter M, Chapter 1201, Occupations Code, |
|
is amended by adding Sections 1201.607 through 1201.611 to read as |
|
follows: |
|
Sec. 1201.607. ISSUANCE OF ORDERS AND REQUESTS FOR |
|
HEARINGS. Any order issued by the director under this chapter, if |
|
not appealed before the 31st day after the date the order was |
|
issued, shall automatically become a final order. If the person |
|
made the subject of the order files a written request for a hearing |
|
with the director, the order shall be deemed to have been appealed |
|
and shall be a contested case under Chapter 2001, Government Code. |
|
The director shall set any appealed order for a hearing before the |
|
State Office of Administrative Hearings, and the board shall issue |
|
a final order after receiving and reviewing the proposal for |
|
decision issued pursuant to such hearing. |
|
Sec. 1201.608. INSPECTION OF LICENSEE RECORDS. (a) The |
|
department may inspect a licensee's records during normal business |
|
hours without advance notice if the director believes that such |
|
inspection is necessary to prevent a violation of this chapter, to |
|
protect a consumer or another licensee, or to assist another state |
|
or federal agency in an investigation. |
|
(b) The director may request or issue subpoenas for a |
|
licensee's records. |
|
(c) The department may carry out "sting" or undercover |
|
investigations in accordance with board-adopted rules if the |
|
director believes such action to be appropriate in order to detect |
|
and address suspected violations of this chapter. |
|
(d) While an investigation is pending, information obtained |
|
by the department in connection with that investigation is |
|
confidential unless disclosure of the information is specifically |
|
permitted or required by other law. |
|
Sec. 1201.609. ACTING WITHOUT LICENSE; CRIMINAL |
|
PENALTY. A person who is not exempt under this chapter and who, |
|
without first obtaining a license required under this chapter, |
|
performs an act that requires a license under this chapter commits |
|
an offense. An offense under this section is a Class B misdemeanor. |
|
A second or subsequent conviction for an offense under this section |
|
is a Class A misdemeanor. |
|
Sec. 1201.610. CEASE AND DESIST. (a) If the director has |
|
reasonable cause to believe that a person licensed under this |
|
chapter has violated or is about to violate any provision of this |
|
chapter or rules adopted by the department under this chapter, the |
|
director may issue without notice and hearing an order to cease and |
|
desist from continuing a particular action or an order to take |
|
affirmative action, or both, to enforce compliance with this |
|
chapter. |
|
(b) The director may issue an order to any licensee to cease |
|
and desist from violating any law, rule, or written agreement or to |
|
take corrective action with respect to any such violations if the |
|
violations in any way are related to the sale, financing, or |
|
installation of a manufactured home or the providing of goods or |
|
services in connection with the sale, financing, or installation of |
|
a manufactured home unless the matter that is the basis of such |
|
violation is expressly subject to inspection and regulation by |
|
another state agency; provided, however, that if any matter |
|
involves a law that is subject to any other administration or |
|
interpretation by another agency, the director shall consult with |
|
the person in charge of the day-to-day administration of that |
|
agency before issuing an order. |
|
(c) An order issued under Subsection (a) or (b) must contain |
|
a reasonably detailed statement of the facts on which the order is |
|
based. If a person against whom the order is issued requests a |
|
hearing before the 31st day after the date the order is issued, the |
|
director shall set and give notice of a hearing. The hearing shall |
|
be governed by Chapter 2001, Government Code. Based on the findings |
|
of fact, conclusions of law, and recommendations of the hearings |
|
officer, the board by order may find that a violation has occurred |
|
or has not occurred. |
|
(d) If a hearing is not requested under Subsection (c) |
|
before the 31st day after the date an order is issued, the order is |
|
considered final and not appealable. |
|
(e) The director, after giving notice, may impose against a |
|
person who violates a cease and desist order an administrative |
|
penalty in an amount not to exceed $1,000 for each day of the |
|
violation. In addition to any other remedy provided by law, the |
|
director may institute in district court a suit for injunctive |
|
relief and for the collection of the administrative penalty. A bond |
|
is not required of the director with respect to injunctive relief |
|
granted under this subsection. |
|
(f) If a person fails to pay an administrative penalty that |
|
has become final or fails to comply with an order of the director |
|
that has become final, in addition to any other remedy provided by |
|
law, the director, after not less than 10 days' notice to the |
|
person, may without a prior hearing suspend the person's license. |
|
The suspension shall continue until the person has complied with |
|
the cease and desist order or paid the administrative penalty. |
|
During the period of suspension, the person may not perform any act |
|
requiring a license under this chapter, and all compensation |
|
received by the person during the period of suspension is subject to |
|
forfeiture to the person from whom it was received. |
|
(g) An order of suspension under Subsection (f) may be |
|
appealed. An appeal is a contested case governed by Chapter 2001, |
|
Government Code. A hearing of an appeal of an order of suspension |
|
issued under Subsection (f) shall be held not later than the 15th |
|
day after the date of receipt of the notice of appeal. The |
|
appellant shall be provided at least three days' notice of the time |
|
and place of the hearing. |
|
(h) An order revoking the license of a retailer, broker, |
|
installer, or salesperson may provide that the person is |
|
prohibited, without obtaining prior written consent of the |
|
director, from being a related person of a licensee. |
|
Sec. 1201.611. SANCTIONS AND PENALTIES. (a) The board |
|
shall adopt rules relating to the administrative sanctions that may |
|
be enforced against a person regulated by the department. |
|
(b) If a person charged with the violation accepts the |
|
determination of the director, the director shall issue an order |
|
approving the determination and ordering that the person pay the |
|
recommended penalty. |
|
(c) Not later than the 30th day after the date on which the |
|
decision is final, the person charged shall: |
|
(1) pay the penalty in full; or |
|
(2) if the person files a petition for judicial review |
|
contesting the fact of the violation, the amount of the penalty, or |
|
both the fact of the violation and the amount of the penalty: |
|
(A) forward the amount assessed to the department |
|
for deposit in an escrow account; |
|
(B) in lieu of payment into escrow, post with the |
|
department a supersedeas bond for the amount of the penalty, in a |
|
form approved by the director and effective until judicial review |
|
of the decision is final; or |
|
(C) without paying the amount of the penalty or |
|
posting the supersedeas bond, pursue judicial review. |
|
(d) A person charged with a penalty who is financially |
|
unable to comply with Subsection (c)(2) is entitled to judicial |
|
review if the person files with the court, as part of the person's |
|
petition for judicial review, a sworn statement that the person is |
|
unable to meet the requirements of that subsection. |
|
(e) If the person charged does not pay the penalty and does |
|
not pursue judicial review, the department or the attorney general |
|
may bring an action for the collection of the penalty. |
|
(f) Judicial review of the order of the director assessing |
|
the penalty is subject to the substantial evidence rule and shall be |
|
instituted by filing a petition with a district court in Travis |
|
County. |
|
(g) If, after judicial review, the penalty is reduced or not |
|
assessed, the director shall remit to the person charged the |
|
appropriate amount, plus accrued interest if the penalty has been |
|
paid, or shall execute a release of the bond if a supersedeas bond |
|
has been posted. The accrued interest on amounts remitted by the |
|
director under this subsection shall be paid at a rate equal to the |
|
rate charged on loans to depository institutions by the New York |
|
Federal Reserve Bank and shall be paid for the period beginning on |
|
the date the assessed penalty is paid to the director and ending on |
|
the date the penalty is remitted. |
|
(h) A penalty collected under this section shall be |
|
deposited in the trust fund. |
|
(i) All proceedings conducted under this section and any |
|
review or appeal of those proceedings are subject to Chapter 2001, |
|
Government Code. |
|
(j) If it appears that a person is in violation of, or is |
|
threatening to violate, any provision of this chapter or a rule or |
|
order related to the administration and enforcement of the |
|
manufactured housing program, the attorney general, on behalf of |
|
the director, may institute an action for injunctive relief to |
|
restrain the person from continuing the violation and for civil |
|
penalties not to exceed $1,000 for each violation and not exceeding |
|
$250,000 in the aggregate. A civil action filed under this |
|
subsection shall be filed in district court in Travis County. The |
|
attorney general and the director may recover reasonable expenses |
|
incurred in obtaining injunctive relief under this subsection, |
|
including court costs, reasonable attorney's fees, investigative |
|
costs, witness fees, and deposition expenses. |
|
SECTION 64. Section 2306.6022(b), Government Code, is |
|
amended to read as follows: |
|
(b) The division shall make available on its website |
|
[provide to the person filing the complaint and to each person who
|
|
is a subject of the complaint a copy of] the division's policies and |
|
procedures relating to complaint investigation and resolution and |
|
shall provide copies of such information on request. |
|
SECTION 65. Section 94.051, Property Code, is amended to |
|
read as follows: |
|
Sec. 94.051. INFORMATION TO BE PROVIDED TO PROSPECTIVE |
|
TENANT. At the time the landlord receives an application from a |
|
prospective tenant, the landlord shall give the tenant a copy of: |
|
(1) the proposed lease agreement for the manufactured |
|
home community; |
|
(2) any manufactured home community rules; and |
|
(3) a separate disclosure statement with the following |
|
prominently printed in at least 10-point type: |
|
"You have the legal right to an initial lease term of six |
|
months. If you prefer a different lease period, you and your |
|
landlord may negotiate a shorter or longer lease period. After the |
|
initial lease period expires, you and your landlord may negotiate a |
|
new lease term by mutual agreement. Regardless of the term of the |
|
lease, [if the recreational vehicle is tied to, affixed, or
|
|
otherwise a permanent part of the premises,] the landlord must give |
|
you at least 60 days' notice of a nonrenewal of the lease, except |
|
that if the manufactured home community's land use will change, the |
|
landlord must give you at least 180 days' notice [if the landlord
|
|
will not renew your lease and will require that you relocate your
|
|
manufactured home or recreational vehicle]. During the applicable |
|
[60-day] period, you must continue to pay all rent and other amounts |
|
due under the lease agreement, including late charges, if any, |
|
after receiving notice of the nonrenewal." |
|
SECTION 66. Section 94.052(b), Property Code, is amended to |
|
read as follows: |
|
(b) Except as provided by Section 94.204, regardless |
|
[Regardless] of the term of the lease, the landlord must provide |
|
notice to the tenant not later than the 60th day before the date of |
|
the expiration of the lease if the landlord chooses [does] not to |
|
renew the lease. During the applicable [60-day] period, the tenant |
|
must pay all rent and other amounts due under the lease agreement, |
|
including late charges, if any, after receiving notice of the |
|
nonrenewal. |
|
SECTION 67. Section 94.053(c), Property Code, is amended to |
|
read as follows: |
|
(c) A lease agreement must contain the following |
|
information: |
|
(1) the address or number of the manufactured home lot |
|
and the number and location of any accompanying parking spaces; |
|
(2) the lease term; |
|
(3) the rental amount; |
|
(4) the interval at which rent must be paid and the |
|
date on which periodic rental payments are due; |
|
(5) any late charge or fee or charge for any service or |
|
facility; |
|
(6) the amount of any security deposit; |
|
(7) a description of the landlord's maintenance |
|
responsibilities; |
|
(8) the telephone number of the person who may be |
|
contacted for emergency maintenance; |
|
(9) the name and address of the person designated to |
|
accept official notices for the landlord; |
|
(10) the penalty the landlord may impose for the |
|
tenant's early termination as provided by Section 94.201; |
|
(11) the grounds for eviction as provided by |
|
Subchapter E; |
|
(12) a disclosure of the landlord's right to choose not |
|
to renew [terminate] the lease agreement if there is a change in the |
|
land use of the manufactured home community during the lease term as |
|
provided by Section 94.204; |
|
(13) a disclosure of any incorporation by reference of |
|
an addendum relating to submetering of utility services; |
|
(14) a prominent disclosure informing the tenant that |
|
Chapter 94, Property Code, governs certain rights granted to the |
|
tenant and obligations imposed on the landlord by law; |
|
(15) if there is a temporary zoning permit for the land |
|
use of the manufactured home community, the date the zoning permit |
|
expires; and |
|
(16) any other terms or conditions of occupancy not |
|
expressly included in the manufactured home community rules. |
|
SECTION 68. The heading to Section 94.204, Property Code, |
|
is amended to read as follows: |
|
Sec. 94.204. NONRENEWAL OF LEASE [TERMINATION] FOR CHANGE |
|
IN LAND USE. |
|
SECTION 69. Section 94.204(a), Property Code, is amended to |
|
read as follows: |
|
(a) A landlord may choose not to renew [terminate] a lease |
|
agreement to change the manufactured home community's land use only |
|
if not later than the 180th day before the date the land use will |
|
change: |
|
(1) [not later than the 120th day before the date the
|
|
land use changes,] the landlord sends notice to the tenant, to the |
|
owner of the manufactured home if the owner is not the tenant, and |
|
to the holder of any lien on the manufactured home: |
|
(A) specifying the date that the land use will |
|
change; and |
|
(B) informing the tenant, owner, and lienholder, |
|
if any, that the owner must relocate the manufactured home; and |
|
(2) [not later than the 120th day before the date the
|
|
land use changes,] the landlord posts in a conspicuous place in the |
|
manufactured home community a notice stating that the land use will |
|
change and specifying the date that the land use will change. |
|
SECTION 70. Sections 11.432(a) and (b), Tax Code, are |
|
amended to read as follows: |
|
(a) For a manufactured home to qualify for an exemption |
|
under Section 11.13 [of this code], the application for the |
|
exemption must be accompanied by a copy of the statement of |
|
ownership and location for the manufactured home issued by the |
|
manufactured housing division of the Texas Department of Housing |
|
and Community Affairs under Section 1201.207, Occupations Code, |
|
showing that the individual applying for the exemption is the owner |
|
of the manufactured home or be accompanied by a verified copy of the |
|
purchase contract showing that the applicant is the purchaser of |
|
the manufactured home, unless a photostatic copy of the current |
|
title page for the home is displayed on the computer website of the |
|
Texas Department of Housing and Community Affairs. The appraisal |
|
district may rely upon the computer records of the Texas Department |
|
of Housing and Community Affairs to determine whether a |
|
manufactured home qualifies for an exemption. |
|
(b) The land on which a manufactured home is located |
|
qualifies for an exemption under Section 11.13 only if: |
|
(1) the manufactured home qualifies for an exemption |
|
as provided by Subsection (a); and |
|
(2) the manufactured home is listed together with the |
|
land on which it is located under Section 25.08. The consumer is |
|
entitled to obtain the homestead exemptions provided by Section |
|
11.13 regardless of whether the owner has elected to treat the home |
|
as real property or personal property and regardless of whether the |
|
home is listed on the tax rolls with the real property to which it is |
|
attached or separately. |
|
SECTION 71. Section 31.072, Tax Code, is amended by adding |
|
Subsection (i) to read as follows: |
|
(i) Notwithstanding Subsection (a), if the property owner |
|
requesting a collector to establish an escrow account under this |
|
section is the owner of a manufactured home and the escrow account |
|
is to be used solely to provide for the payment of property taxes |
|
collected by the collector on the property owner's manufactured |
|
home, the collector shall enter into a contract with the property |
|
owner under this section. |
|
SECTION 72. Section 32.03, Tax Code, is amended to read as |
|
follows: |
|
Sec. 32.03. RESTRICTIONS ON PERSONAL PROPERTY TAX |
|
LIEN. (a) Except as provided by Subsection (a-1), a tax lien may |
|
not be enforced against personal property transferred to a buyer in |
|
ordinary course of business as defined by Section 1.201(9) of the |
|
Business & Commerce Code for value who does not have actual notice |
|
of the existence of the lien. |
|
(a-1) With regard to a manufactured home, a tax lien may be |
|
recorded at any time not later than six months after the end of the |
|
year for which the tax was owed. A tax lien on a manufactured home |
|
may be enforced if it has been recorded in accordance with the laws |
|
in effect at the time of the recordation of the lien. A properly |
|
recorded tax lien may not be enforced against a new manufactured |
|
home that is owned by a person who acquired the manufactured home |
|
from a retailer as a buyer in the ordinary course of business [A tax
|
|
lien against a manufactured home may not be enforced unless it has
|
|
been recorded with the Texas Department of Housing and Community
|
|
Affairs as provided by Section 1201.219, Occupations Code:
|
|
[(1) before October 1, 2005; or
|
|
[(2)
not later than six months after the end of the
|
|
year for which the tax was owed]. |
|
(a-2) A person may not transfer ownership [title] of a |
|
manufactured home until all tax liens perfected on the home that |
|
have been timely filed with the Texas Department of Housing and |
|
Community Affairs have been extinguished or satisfied and released |
|
and any personal property taxes on the manufactured home which |
|
accrued on each January 1 that falls within the 18 months preceding |
|
the date of the sale have been paid. This subsection does not apply |
|
to the sale of a manufactured home in inventory. |
|
(b) A bona fide purchaser for value or the holder of a lien |
|
recorded on a [the] manufactured home statement of ownership and |
|
location is not required to pay any taxes that have not been |
|
recorded with the Texas Department of Housing and Community |
|
Affairs. In this section, manufactured home has the meaning |
|
assigned by Section 32.015(b). Unless a tax lien has been filed |
|
timely with the Texas Department of Housing and Community Affairs, |
|
no taxing unit, nor anyone acting on its behalf, may use a tax |
|
warrant or any other method to attempt to execute or foreclose on |
|
the manufactured home. |
|
(c) A taxpayer may designate in writing which tax year will |
|
be credited with a particular payment. If a taxpayer pays all the |
|
amounts owing for a given year, the taxing unit shall issue a |
|
receipt for the payment of the taxes for the designated year. |
|
(d) Notwithstanding any other provision of this section, if |
|
a manufactured home was omitted from the tax roll for either or both |
|
of the two preceding tax years, the taxing unit may file a tax lien |
|
within the 150-day period following the date on which the tax |
|
becomes delinquent. |
|
(e) If personal property taxes on a manufactured home have |
|
not been levied by the taxing unit, the taxing unit shall provide, |
|
upon request, an estimated amount of taxes computed by multiplying |
|
the taxable value of the manufactured home, according to the most |
|
recent certified appraisal roll for the taxing unit, by the taxing |
|
unit's adopted tax rate for the preceding tax year. In order to |
|
enable the transfer of the manufactured home, the tax collector |
|
shall accept the payment of the estimated personal property taxes |
|
and issue a certification to the Texas Department of Housing and |
|
Community Affairs that the estimated taxes are being held in escrow |
|
until the taxes are levied. Once the taxes are levied, the tax |
|
collector shall apply the escrowed sums to the levied taxes. At the |
|
time the tax collector accepts the payment of the taxes, the tax |
|
collector shall provide notice that the payment of the estimated |
|
taxes is an estimate that may be raised once the appraisal rolls for |
|
the year are certified and that the new owner may be liable for the |
|
payment of any difference between the tax established by the |
|
certified appraisal roll and the estimate actually paid. |
|
SECTION 73. (a) The following provisions of the |
|
Occupations Code are repealed: |
|
(1) Section 1201.059; |
|
(2) Section 1201.112; |
|
(3) Sections 1201.113(c), (d), (e), (f), and (g); |
|
(4) Section 1201.163; |
|
(5) Sections 1201.214(c) and (d); and |
|
(6) Section 1201.408. |
|
(b) Section 2306.6023, Government Code, is repealed. |
|
SECTION 74. The changes in law made by this Act to Sections |
|
94.051, 94.052, 94.053, and 94.204, Property Code, apply only to a |
|
lease agreement or a renewal to a lease agreement entered into after |
|
the effective date of this Act. A lease agreement or a renewal to a |
|
lease agreement entered into on or before the effective date of this |
|
Act is covered by the law in effect at the time the lease agreement |
|
or the renewal to the lease agreement was entered into, and the |
|
former law is continued in effect for that purpose. |
|
SECTION 75. The change in law made by this Act applies only |
|
to the sale, exchange, or lease-purchase of a new or used |
|
manufactured home on or after the effective date of this Act. A |
|
sale, exchange, or lease-purchase of a new or used manufactured |
|
home before the effective date of this Act is governed by the law in |
|
effect on the date of the sale, exchange, or lease-purchase, and the |
|
former law is continued in effect for that purpose. |
|
SECTION 76. Except as otherwise provided by this Act, the |
|
changes in law made by this Act apply only to a license issued or |
|
renewed by the Texas Department of Housing and Community Affairs on |
|
or after January 1, 2008. An issuance or renewal that occurs before |
|
January 1, 2008, is governed by the law in effect immediately before |
|
that date, and the former law is continued in effect for that |
|
purpose. |
|
SECTION 77. The change in law made by this Act applies only |
|
to an offense committed on or after the effective date of this Act. |
|
An offense committed before the effective date of this Act is |
|
governed by the law in effect when the offense was committed, and |
|
the former law is continued in effect for that purpose. For |
|
purposes of this section, an offense was committed before the |
|
effective date of this Act if any element of the offense was |
|
committed before that date. |
|
SECTION 78. The changes in law made by this Act to |
|
provisions of the Tax Code apply only to an ad valorem tax year that |
|
begins on or after January 1, 2008. The changes in law made to those |
|
provisions do not affect a tax lien that attached to property for a |
|
tax year that began before January 1, 2008, and the law in effect |
|
immediately before January 1, 2008, is continued in effect for |
|
purposes of the tax lien. |
|
SECTION 79. This Act takes effect January 1, 2008. |
|
|
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______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
|
I certify that H.B. No. 1460 was passed by the House on April |
|
26, 2007, by the following vote: Yeas 144, Nays 0, 1 present, not |
|
voting; and that the House concurred in Senate amendments to H.B. |
|
No. 1460 on May 24, 2007, by the following vote: Yeas 142, Nays 4, |
|
1 present, not voting. |
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
I certify that H.B. No. 1460 was passed by the Senate, with |
|
amendments, on May 22, 2007, by the following vote: Yeas 31, Nays |
|
0. |
|
|
|
______________________________ |
|
Secretary of the Senate |
|
APPROVED: __________________ |
|
Date |
|
|
|
__________________ |
|
Governor |